Apolloni v Traffic Technologies Management Division Pty Ltd [2012] QSC 70

Lynette Apolloni was employed as a traffic controller by Traffic Technologies. On 2 July 2007 she was required to work at a site in Innisfail where the Department of Main Roads was installing traffic lights and the employer was controlling the traffic.

Prior to starting work the worker was crossing an ordinary road to get to the pre-start meeting. Her foot slipped off the edge of the kerb and, as a result, she suffered an Achilles tendon sprain requiring surgery and a subsequent adjustment disorder with depressed mood. She alleged the accident occurred because the employer failed to provide her with adequate lighting, either in the form of a handheld torch or failed to ensure the street lights were working. She alleged the time of the incident was before dawn.

The employer argued the street lights were operating normally but, in any case, the quality of the lighting was irrelevant because the accident occurred in daylight. A certificate was obtained from the Australian Government that sun-up in Innisfail on 2 July 2007 was at 6:47am with twilight commencing at 6:23am. The time in the Government certificate was admitted by both the employer and the worker.

The matter was heard by Justice Henry in the Supreme Court in Cairns on 19 March 2012 and judgement in favour of the employer was handed down the following day.

His honour focused his attention on the time the incident occurred and, once he had made a finding of fact that it happened after sun up, held there was no need to consider whether the street lights were working or whether the employer should have provided the worker with a torch.

The worker gave evidence on her own behalf that the incident happened as she arrived on site at around 6:20am. Under cross-examination she agreed she was expected to be at work approximately 10 or 15 minutes prior to the start of work which was at 8am. After the accident she completed an incident form for the employer that gave the time of the incident as 8am. She completed an application for workers compensation on 4 July 2007 giving the time of injury as 8am. She was unable to explain to the Judge’s satisfaction why she would have entered 8am in the contemporaneous documents if the accident occurred at 6:20 or why she would have been on site more than 90 minutes before the start of work that day.

The employer was able to call evidence from the Main Roads supervisor who, the worker was adamant, was already on site when she arrived and was injured. He was able to refer to his work diary that showed he left Cairns to drive to Innisfail at 6am, filled his car with fuel en route and arrived on site at approximately 7:30am. This evidence was accepted by the Judge.

Justice Henry dismissed the worker’s claim. He found on the balance of probabilities that the incident occurred sometime between 7:40am and 7:50am when there was no problem with the natural light.

The case highlights the importance of the contemporaneous documentation - the incident report and application for compensation, both of which were signed by the worker and the supervisor’s diary. It highlights the benefits to employers of enforcing the reporting of incidents and generating and retaining documentation recording when and how incidents occur.

A copy of the Judgment can be found here.