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