The plaintiff’s claim failed because of credibility issues. She and her witness were not accepted as to when the incident occurred.
The plaintiff alleged the incident occurred because there was inadequate lighting at or around dawn (6:20-30am) and so caused her to slip or trip on stepping up onto the kerb. The defendant alleged that the incident occurred after sunrise and hence the time of the incident was critical.
The incident report document completed by the plaintiff relevantly provided:
“Date of incident – 2 July 2007. Time of incident – 8 a.m. Arrived at work site – 7 a.m., due to poor lighting lost footing on kerb and hurt foot. Foot began aching within minutes and couldn’t put weight on it. Taken to Innisfail Hospital approx 8.30 – 9 a.m.”
The time of the incident was replicated in the Application for Compensation, a sworn document. The plaintiff attempted to explain away this by saying it has simply been copied. Justice Henry was found this excuse to be implausible given the time was considerably later (than that now claimed) and a matter of some critical importance, and not forgetting the Application is a sworn document.
Justice Henry noted that it was not advanced it was a deliberate falsehood to ensure workers’ compensation or that it was concocted to bring it within official working hours.
Furthermore, Henry J observed that the plaintiff failed in her evidence to make the causal connection with the inadequate lighting and the failure to observe the kerb because of the poor lighting. Likewise, the plaintiff’s explanation as to the weather and why she preferred to arrive at work 90 minutes early for work was found to be implausible.
Civil twilight was found to have occurred at 6:23am and sunrise at 6:47am. The relevance of this was Henry J considered that around this time there would have been some artificial light, together with peripheral lighting from street lights. The plaintiff asserted that 2 of these were not working. However, evidence from Ergon was preferred that there was a system of reporting and inspecting lights that were not working and neither of the lights were found to be inoperative or if there were off, it was due to their photoelectric cells having caused them to turn off because it was daylight.
The plaintiff’s corroborative witness was found not to have an independent recollection, but simply reciting his statement which was abandoned under cross examination. Ultimately, he conceded he arrived in daylight and had no reliable record of the times; unlike, Mr Yates for the defence who was described as unshaken in cross-examination. The difficulty for the plaintiff was her evidence was linked to Mr Yates, as he was the person who the incident was immediately reported to and said to have been onsite when it happened. His Honour found much comfort in the diary entries of Mr Yates which corroborated his travel and work activities on the morning of the incident, together with his demeanour in the witness box, which found to be in stark contrast to the plaintiff. Cementing the plaintiff’s demise on this point, it was that the information for his diary that was provided by the plaintiff to Mr Yates. Furthermore, his Honour noted that the version provided did not make reference to the causal connection of the lack of lighting as the reason for the incident.
Unsurprisingly, Henry J dismissed the claim without going further to determine the other aspects of the claim.
Brisbane Barrister – David Cormack