Australia: A new dawn for employers in defending common law claims? No – but a win is a win

The employer successfully defended this common law claim because the court rejected the plaintiff's version of how the incident occurred.

Facts

The plaintiff was employed by the defendant as a traffic controller. She alleged that on 2 July 2007, she sustained a left ankle sprain, and consequent fracture to the right foot and adjustment disorder, after slipping or tripping on a kerb at a roadwork site at Innisfail whilst stepping up from the road surface. Quantum was settled at $303,117.94 prior to trial, and allowed for an agreed 15% reduction for contributory negligence. Liability was the only outstanding issue.

The plaintiff's case was that she slipped or tripped because she could not see the kerb as the incident occurred before daylight. In the circumstances, the plaintiff alleged she should have been provided with a torch or directed not to attend the workplace until there was sufficient visibility. The defendant submitted that such considerations were irrelevant as the incident occurred in daylight after sunrise.

Decision

It was largely uncontentious that work at the site was due to commence at 8am, with a toolbox meeting, and that the plaintiff was required to arrive some 10 to 15 minutes beforehand. The plaintiff said she in fact arrived at the site at 6.20am, and that the incident occurred in the 10 minutes or so after that. Sunrise was identified as 6.47am on the relevant date.

The court's findings hinged heavily (almost entirely) on its doubts over the plaintiff's credibility, and in particular, her assertion as to the time of the incident.

An incident report which the plaintiff assisted in completing on the day of the incident stated that she arrived at the site at 7am, with the incident occurring at 8am. Her subsequent application for compensation identified the time of the incident as 8am. In the court's view, the plaintiff was unable to adequately explain, in her evidence, her reason for arriving so early at the site, and for the contemporaneous differences in the reported incident time.

The plaintiff alleged that a co-worker, David Yates, was present at the work site when she arrived at 6.20am. Mr Yates gave evidence that he arrived at some time after 7.30am, which was consistent with him having to travel from Cairns to Innisfail prior to starting work that morning. A work incident report compiled by Mr Yates based upon (the court inferred) information provided by the plaintiff, (1) recorded the incident time as 7.50am and (2) made no reference to poor visibility or poor lighting as a causative feature. A work diary completed by Mr Yates on the day of the incident contained an entry at 8.05 reading "Lyn sprained ankle (a little before I found out now)".

The defendant also noted that the area was likely to have been illuminated to some extent by street lighting. The plaintiff's assertion that the two closest street lights were not operating was not supported by Ergon Energy's inspection records of April and September 2007, which in each instance found neither light inoperative.

In light of all of the above factors, the court determined that the incident did not occur in darkness or near darkness at or soon after 6.20am, but in fact occurred between approximately 7.40am and 7.50am at a time of day when there was no impairment of visibility by reason of any lack of natural light. As such, the plaintiff's case failed.

Implications

This decision turned entirely upon its own facts, but it shows that the court is prepared to reject a plaintiff's assertion as to how an incident occurred if strong evidence can be led by the defendant to discredit the plaintiff's recollection.

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