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

1 [2012] QSC 70 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION HENRY J Claim No 253 of 2010 LYNETTE RAE APOLLONI Plaintiff and TRAFFIC TECHNOLOGIES MANAGEMENT DIVISION PTY LTD Defendant CAIRNS ..DATE 20/03/2012 JUDGMENT -- 1 of 27 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The plaintiff, Lynette Apolloni, claimed damages for a breach of contract and/or negligence and/or statutory duty. The claim for breach of statutory duty was abandoned at the start of the trial. It is common ground that the plaintiff, an employee of the defendant, was injured in an incident occurring in the vicinity of Gordon Street in Innisfail nearby its intersections with Grace Street and the Bruce Highway on the morning of the 2nd of July 2007. That general location was the subject of ongoing road and other works at which the defendant was, by day, conducting traffic control work. The statement of claim filed 19 May 2010 pleaded the injuries were a left Achilles tendon sprain requiring surgery and scarring of the left ankle, and in consequence thereof, a fracture of the right foot and an adjustment disorder with depressed mood. Those injuries were at least partly admitted in the pleadings. No evidence was adduced at trial of the detail of the injuries, save for passing reference to the ankle pain and swelling the plaintiff noticed at the time of and shortly after she sustained the injury after stepping from the road surface up on to the kerb. No substantive evidence was led about the injuries because, as I was informed at the outset of trial, the parties have agreed on quantum and contributory negligence and resolved the total quantum of Ms Apolloni's loss to be $303,117.94, an amount apparently clear of WorkCover reductions and reduced by 15 per -- 2 of 27 -- 3 JUDGMENT 1 10 20 30 40 50 60 cent for contributory negligence. The sole issue for determination at trial was therefore liability. The foundation for liability as pleaded was narrowed at the outset of the trial with the plaintiff's counsel indicating reliance was placed specifically on subparagraphs (a),(c),(d),(e) and(f) of paragraph 8, and by repetition in paragraph 9. By reference to those subparagraphs then the plaintiff pleads: "8. The accident and the plaintiff's personal injuries were caused by the defendant's breach of the contract of employment between the plaintiff and the defendant. Particulars of the defendant's breach of contract (a) Requiring, permitting and/or inviting the plaintiff to undertake work at or around dawn with insufficient lighting to illuminate the premises; ... (c) Failing to devise, implement and to maintain a system of work which obviated the need for, and/or prevented the plaintiff from performing any work tasks at or around dawn; (d) Failing to provide the plaintiff with any, or any adequate, handheld lighting to illuminate the premises at or about dawn; (e) Failing to undertake any, or any adequate, risk assessment to identify potential hazards to the employees, such as undertaking work at the premises at or around dawn; (f) Failing to undertake any, or any adequate, risk assessment to employees, such as the failure to provide any, or any adequate, lighting for the purposes of illuminating the premises at or around dawn; ... 9. Further, and alternatively, the accident and the plaintiff's personal injuries were caused by the defendant's breach of duty which it owed to the plaintiff. -- 3 of 27 -- 4 JUDGMENT 1 10 20 30 40 50 60 Particulars of the defendant's negligence. The plaintiff repeats and relies on allegations contained in paragraph 8 herein." Plainly, the allegations now referred to as being "repeated and relied upon" are subparagraphs (a),(c),(d),(e) and(f). It is evident the plaintiff's case turns on alleged failings of the defendant relating directly and/or indirectly to the adequacy of lighting at or around dawn on the morning in question. Its case, in short, is that Ms Apolloni slipped or tripped in stepping up on to and over the kerb because she could not see it properly. This, the plaintiff says, is because the incident occurred before daylight. It is an incident the plaintiff contends could easily have been prevented had the plaintiff been issued with or told to use a handheld torch, or by way of the defendant directing that she not attend the workplace until and unless there was sufficient visibility to ensure she could move about safely. The defendant submits the plaintiff's case must fail at the threshold because the incident did not even occur at or about dawn, and rather occurred in daylight, well after, and probably about an hour after, sunrise. The plaintiff accepted the defendant's alleged failures or breaches could not have caused the plaintiff's injury if the incident occurred in daylight. The question as to when the episode occurred is thus of -- 4 of 27 -- 5 JUDGMENT 1 10 20 30 40 50 60 critical threshold importance. If the plaintiff fails on that issue, that is the end of the matter. If the plaintiff were to prevail on that threshold issue, it would then remain to determine whether the defendant is liable for the plaintiff's injury, or whether it is a bridge too far to hold an employer liable for an injury to an employee flowing from a misjudged step when walking from a road up on to a footpath just before daybreak on a public street at least an hour and 20 minutes before the employee needed to report for her work in daylight hours. Ms Apolloni, who was 41 at the time of the incident, completed a traffic controller's course in July 2006 and was employed by the defendant as a traffic controller in late April, or early May 2007. In her course and, more particularly her induction and tool box meetings with the defendant, she was not told anything about the need to obtain or be issued with a torch. She was given no instruction by the defendant regarding a torch. There is, however, no suggestion she was ever required by the defendant to work in the night-time. She worked in the daytime at a variety of locations in the Innisfail district for the defendant. She had worked on a number of earlier days at the Gordon Street site. On the morning of the incident she understood, as did other witnesses, that work was to commence at the Gordon Street area at 8 a.m. commencing with a tool box meeting. At one stage of her evidence she also said the tool box meeting was supposed to occur before the 8 o'clock start, -- 5 of 27 -- 6 JUDGMENT 1 10 20 30 40 50 60 but in the main her evidence conveyed an understanding that the tool box meeting was to start at 8. She gave evidence she was expected to be at work at the site by 10 or 15 minutes before 8 o'clock, that is at 7.50 or 7.45 (T1-26-L9) although she also said she understood she had to be there by 7.30 (T1-22-L15). The defendant's work time records for 2 July 2007, Exhibit 3, support the evidence that the start time was 8 a.m. It records a number of employees, including the plaintiff, with the same times. Under "travel start from depot" the time entered is 7, and under "job start" the time entered is 8. Employees from whom I heard, Ms Apolloni and Mr Howard, did not travel from the depot but came from their homes. That record's real significance is in reinforcing the oral evidence that the job start time was around 8 a.m.. Ms Apolloni claims she left her home at Bingil Bay around 5.30 and drove in a work vehicle to a service station near the incident scene and bought a toasted sandwich for breakfast. She said she arrived at the scene at about 6.20 a.m., at which time Main Roads employee David Yates was already there. She said she parked, crossed the street, and spoke to Mr Yates, went back to her work vehicle, and put on her traffic controller's vest, put out a roadwork ahead sign, and crossed back towards Mr Yates. -- 6 of 27 -- 7 JUDGMENT 1 10 20 30 40 50 60 When arriving at the gutter and verge between the road and footpath she allegedly stepped up with her left foot with the ball of her foot, but not the arch or heel of the foot, on the verge, and in then moving her right leg forward the left foot slipped directly back down into the gutter. She felt a twinge but nothing else at that point. She sat down under an awning - apparently something of a workers' rendezvous point nearby - and ate her breakfast. On her account Mr Yates was nearby. After 20 minutes she went to stand up and found she could not weight-bear on her left foot. Mr Yates was the only other person there at this time. After that, on her account, Robert Howard and others, including a girl Caroline, arrived. The plaintiff testified Caroline helped her take her work boot off and obtained and applied an icepack for about half an- hour. The heel allegedly continued to swell and one of the female workers present drove her to the Innisfail Hospital arriving around 8 o'clock. That later estimate is probably about right. Exhibit 1, page 6, the hospital records, have a triage time of 8.14 a.m. Ms Apolloni may have been there some minutes before that time was recorded. She later returned to the scene and wrote and signed an incident report, Exhibit 4, with Robert Howard's assistance. -- 7 of 27 -- 8 JUDGMENT 1 10 20 30 40 50 60 That document is dated 2 July 2007, is endorsed with the time 8 a.m., and identifies Ms Apolloni as the person making the report. The entry bearing her signature reads: "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." Ms Apolloni gave evidence that she and Robert Howard estimated the times inserted in that report. On either case some of the times are wrong. The hospital arrival time is probably too late. The time of incident of 8 a.m. is probably about 10 to 15 minutes or so too late even on the defendant's case, but it is at least one and a-half hours too late on the plaintiff's case. She says the incident occurred soon after toing-and- froing straight after her 6.20 arrival. On her account then the incident would have occurred only a short number of minutes after 6.20 and presumably by about 6.30 or so. The extent of her incident time error in Exhibit 4 is, in my view, significant. The possibility it was a deliberate falsehood aimed to bring the event within official work time and ensure payment of workers' compensation was not advanced as an explanation. In short, no sensible explanation for an error of such dimension was given. It is an error repeated in -- 8 of 27 -- 9 JUDGMENT 1 10 20 30 40 50 60 Exhibit 5, her application for compensation, a document bearing her solemn assertion as to its truth and an endorsement noting the injury happened at 8 a.m. As with Exhibit 4, if the incident happened, as the defendant's case suggests, at about 7.45 or 7.50 such an error might be marginal, but it is a significant error on the plaintiff's case. The plaintiff's explanation for the error is that it simply duplicates the error which commenced in Exhibit 4. I found that explanation unconvincing, particularly given the obvious importance and solemnity of the document. Moreover, it ought be borne in mind she had claimed in Exhibit 4 that she lost her footing, "due to poor lighting". If she was being truthful about that then she had to have known the incident happened long before 8 a.m. Her claim of error is implausible. In the absence of a more credible explanation being advanced by the plaintiff, such as the time entered being concocted to bring the event within official working hours, and I repeat, no such explanation was advanced, the most logical inference open is that the episode actually happened close in time to 8 o'clock and that her notation of the time of the incident as 8 o'clock is a reasonably accurate, if not precise, recording of when it occurred. -- 9 of 27 -- 10 JUDGMENT 1 10 20 30 40 50 60 In light of her claim in Exhibit 4, and in her case generally that the incident happened due to poor light, it was surprising that she failed to assert that causal link in her description in chief of the event. Her description in chief of what occurred contained no direct reference to her not seeing, or not properly seeing, the kerb on to which she stepped. Indeed it seemed obvious she had seen it for she described stepping up onto it. I hinted at this omission towards the end of her evidence-in-chief but really it was only in re-examination that she clearly laid claim to the lack of light as a causal influence explaining she had not put the whole of her foot on the gutter because she could not see the gutter properly. I make due allowance for the plaintiff's likely unfamiliarity with the witness box, and her likely lack of ease in giving her recollection, but nonetheless her failure in chief to incorporate the contribution of the alleged visibility problem into her description of the occurrence of the actual incident detracted from the reliability of her claim this event happened because of poor light. Another aspect of her account which troubled me was her claim that she chose to arrive at work about an hour and a-half before she needed to be there. I appreciate some people like -- 10 of 27 -- 11 JUDGMENT 1 10 20 30 40 50 60 to get up and head to work early and settle in and be ready for the day ahead. That is just the way they are. But when the question was raised with Ms Apolloni she did not give that sort of explanation. The following questions and answers occurred in cross- examination: "And I put it to you that the accident happened not long before 8 o'clock? - - Accident happened at about 20 past 6. 20 past 6? - - I arrived at work. So about 2 - about - 20 past 6? -- Yes. So that's an hour and 40 minutes before the tool box meeting was due to start? -- Yes. Why would you arrive there so early? -- We'd been arriving early because of the weather. We weren't sure whether or not we were going to be there all day working or not. Why? -- Two days prior or something we got sent home because it was raining. We couldn't see." (T1-29 commencing L22) Because that answer did not appear to make much sense as a responsive answer I returned to the topic at the end of cross- examination at which time the following questions and answers occurred: “His Honour: Just before re-examination, Mr Murphy. Ms -- 11 of 27 -- 12 JUDGMENT 1 10 20 30 40 50 60 Apolloni, you were asked about why you arrived an hour and 40 minutes before the tool box meeting was due to start, and you made a response to Mr O'Sullivan it was because of the weather, and you explained that if the weather was too poor that you could get sent home if it was raining.-- Yes. Had there been some past episode along that line, had there? -- Where we'd been sent home? Yes. -- Yes. When had you been sent home in the past in that sort of situation? -- As in times and dates? Yes? -- Well, I can't give you times and dates, but while on that site— Mmm-hmm. -- we had actually been sent home, I think, on two occasions. What time of day had you been sent home? -- In the morning. At the tool box meeting they just decided it was too wet and too dangerous to work so they signed us off. Anything arising out of that? Mr O'Sullivan: Just one question. And that's the point. The decision about whether or not you would do the work would take - would be made at the pre-start meeting. That's correct? -- Say again, sorry? The decision whether or not you might work or not work because of the weather would be made at the pre-start -- 12 of 27 -- 13 JUDGMENT 1 10 20 30 40 50 60 meeting? -- The tool box meeting. Yes. And that, on this occasion, would have taken place at 8 o'clock? -- Yes." (T1-40 commencing L20) Therefore, the explanation she proffered for arriving one and a-half hours or more early, on close scrutiny, was quite implausible. If the event happened when she claimed, that is at or soon after 6.20 a.m., then sunrise was yet to occur. Exhibit 2, the astronomic phenomenon certificate indicates sunrise was not until 6.47 and civil twilight started at 6.23. Its definition of "civil twilight" reads as follows: "The beginning of morning civil twilight and the end of evening civil twilight is defined as the instant in the morning or evening when the centre of the sun is at a depression angle of six degrees below an ideal horizon. At this time, in the absence of moonlight, artificial lighting or adverse atmospheric conditions, the illumination is such that large objects may be seen, but no detail is discernible..." In fact, even at or soon after 6.20 there was obviously some artificial light. The incident scene was only metres from the main road in a built-up commercial district of Innisfail. Setting aside the generally lighter characteristics of a substantial township at night-time, in contrast to the countryside beyond it, there was likely some peripheral light being cast by the light under the nearby awning and the area was also lit by streetlighting. -- 13 of 27 -- 14 JUDGMENT 1 10 20 30 40 50 60 In cross-examination, Ms Apolloni was asked about the nearby streetlights and claimed two - the two closest ones - were not operating. That evidence, which would have been relevant to mention in-chief, but which had not been mentioned, fell unaccompanied by any explanation at all from her as to when she noticed the lights were out or what prompted her to take such notice. The manner in which that evidence was given and its lack of association with accompanying or explanatory factual recollection struck me at the time it was delivered as not having the feel of a recollection of genuine fact. Given the integral causative role the lack of visibility supposedly had in the incident which unfolded, her supposed recollection of there being two defective streetlights, disconnected as it seemed to be from her factual narrative, had an air of artificiality about it. This is by no means a determinative aspect. It falls to be considered as part of the overall evidentiary picture and, despite the concerns I have thus far mentioned and have yet to mention, may have fallen away as a concern in the absence of some other relevant evidence. However, there was other relevant evidence on the point, namely the evidence from Mr Cooper and Mr Bowes of Ergon. Considered collectively, that evidence renders it highly unlikely the two lights were not operating as at the time the complainant asserts the incident happened. -- 14 of 27 -- 15 JUDGMENT 1 10 20 30 40 50 60 The chain of reasoning advanced by the defendant in respect of their evidence is that the alleged malfunctioning lights would have been the subject of a record by Ergon. There is no such record. If Ergon's only methodology was to rely on members of the public reporting inoperative lights, then obviously that alone would not sustain the defendant's argument since it is possible the public simply failed to report the inoperative lights to which Ms Apolloni lays claim. However, Ergon conducted its own inspection to check whether streetlights in the locale were operating, and thus attend to fixing those which were not, in April and September of 2007. Neither of the two lights to which Ms Apolloni referred as inoperative were found to be inoperative in those processes. It follows as a matter of logic that for Ms Apolloni's evidence to be true, the two lights of which she spoke developed transitory defects causing them to be inoperative as at 2 July 2007, but in effect self-remedying thereafter. While the cross-examination of Mr Bowes touched upon the possibility of the lights not working and suddenly working again, it was done tangentially with the focus of the questioning really being on how a light's operation would only be noticed at the time of the inspection. There was no direct questioning on how realistic or likely it was that faulty streetlights would self-remedy. It is more likely than not on the whole of the evidence that the nearby streetlights were actually operating properly and that, as daylight fell, their photoelectric cells caused them -- 15 of 27 -- 16 JUDGMENT 1 10 20 30 40 50 60 to turn off. That is, they were off not because they were broken, but because by the real time of the incident it was already daylight and the streetlights had already turned off automatically. Against this accumulation of problems with the credibility of Ms Apolloni's evidence, it is noteworthy that her other witness, Mr Howard, presented as least reliable on the issue of most importance to Ms Apolloni's case, namely time. He seemed to be reciting what had been put in his statement and not an actual recollection when he gave evidence. My very strong impression of his evidence as to time was that he did not have a reliable recollection and such support as it gave the plaintiff's case was abandoned by him in cross- examination. In the light of some submissions to the contrary made by Ms Apolloni's counsel, I have carefully reviewed my notes and more particularly the transcript of his evidence, lest my impression at first blush was misleading. However, that exercise has only served to affirm the impression I had at the time he gave evidence. That evidence included: "What time did you arrive at that site? -- In my statement I - I said between 6.30 and 7. It was roughly daylight. The sun was just about coming up by the time I got there, yeah. All right. And was there anyone already on site when you -- 16 of 27 -- 17 JUDGMENT 1 10 20 30 40 50 60 arrived? -- I'm - I'm sure Lyn and David Yates was there when I arrived, yes." (T1-40 commencing L48) ... "And when you turned up on site where was Ms Apolloni? -- She was sitting down underneath the cover of where they had their prestart meeting. And where was Mr Yates? -- He was - he was with her there." (T1-40 commencing L48) Continuing in cross-examination: "You were decided to arrive a bit early on this occasion? -- Correct, yes. Just to understand what had to be done and what had been done, I suppose? -- Yeah. Mainly, I - I usually arrive a little bit earlier so that I could get a - a sense of what the traffic conditions are going to be like and where I need to set signs up and what the side streets were." (T1-42 commencing L43) ... Work was to start at 8 o'clock on this occasion? -- Correct. Is that correct? -- Correct. And you only needed to be there a short time prior to 8 o'clock? -- Yes." (T1-43 commencing L43) ... "Do you agree with this, that the first time that you were asked to provide a statement about the matter was in October 2009? -- Correct, yes. Over two years after the accident? -- Yeah." (T1-44 commencing L3) -- 17 of 27 -- 18 JUDGMENT 1 10 20 30 40 50 60 ... "-- My recollection of that and the only - where I'd be going on that would be with the dockets that I would have - that - that I had on hand at the time. Well, the only dockets that were in contention are the ones that reported the time at which people had their travel times to commence? -- Correct, yeah. At 7 o'clock? -- Yeah. And the start time of 8 o'clock? -- Yep." (T1-44 commencing L18) ... "And that was written on the 2nd of July 2007? -- Correct, yeah. Now, when you arrived you were sure that Mr Yates, David Yates, was there; is that correct? -- Correct, yeah. And you believe that Lyn Apolloni was there as well when -- Yes. you arrived? -- When - when I arrived they were both there, yes. Now, sir, if I was to put to you that in fact Mr Yates did not arrive until 7.30 would you still maintain that you were there as early as 6.30, 7 o'clock? -- Probably - probably not. I'd - in saying that I may have arrived when the sun was coming up and then may have went around and checked the work site and - and in doing that when I got back they were both there. I didn't see them arrive, though. Okay, so you didn't see them arrive? -- No. Sunrise, according to the official record, was at 6.45 -- 18 of 27 -- 19 JUDGMENT 1 10 20 30 40 50 60 a.m.? -- Right. So about a quarter to 7? -- Right. Yeah. Does that assist you in determining when you arrived? Do you think it was after sunrise? -- I - yeah, in saying that now, it probably would have been after, yes. But I - the time, I may have got the timing wrong." (T1-44 commencing L50) ... "When you arrived, you didn't have any difficulty seeing, you know, the gutters and the other things about the place? -- No. No. There was enough light for you to make your way around without requiring artificial light? -- Yeah. Correct, no." (T1-45, L42) The upshot is that Mr Howard did not maintain he arrived as early as he apparently must have said in his statement. He conceded he arrived in daylight and he had no reliable record of times. This is in stark contrast to the evidence of Mr Yates. The conclusion it was in fact daylight at the time of the incident becomes inevitable if the evidence of Mr Yates as to times is accepted. His evidence and the evidence of Ms Apolloni as to the key time are simply irreconcilable; that is, one of them must be wrong and quite wrong. -- 19 of 27 -- 20 JUDGEMENT 1 10 20 30 40 50 60 Ms Apolloni's evidence describing her movements and arrival clearly and repeatedly referred to Mr Yates being present in the locale at the time of the incident, at or soon after 6.20 a.m. Her account simply leaves no room for mistake about that as the following examples from her evidence demonstrate: "Was there anyone else at the worksite when you arrived there? -- David Yates. And that's Mr David Yates from Roadtek? -- Yes. Or Main Roads? -- Yeah." (T1-10 commencing L12) ... "Okay. Did you - when you arrived, did you have a conversation with Mr Yates or what did you do when you first arrived? -- I had my high-vis vest on when I got out of the work vehicle. I walked across the road and spoke to David, then I went back to the work ute and put on my traffic controllers vest and put a road sign out stating that there was traffic work - road work ahead, beyond the ute and proceeded across back to David." (T1- 10 commencing L25) ... "Did you have a conversation with anyone after you lost your footing? -- Yeah, David Yates. Where was, if you look at photograph 1 again, where was Mr Yates? -- If you could imagine that car there as his work ute, he was there against the back of the ute doing some sort of paperwork." (T1-12 commencing L32) -- 20 of 27 -- 21 JUDGEMENT 1 10 20 30 40 50 60 ... "Sitting in the ute? -- No, he was leaning against the back of the ute and I leant against the driver's side." (T1-12 commencing L48) ... "So, you had a conversation with Mr Yates and then you sat down? -- Yeah. All right. How long did you sit down for? -- Twenty minutes. All right. And what happened after that? -- I went to stand up and I couldn't weight-bear on my left foot, so I sat straight back down. Was it still only Mr Yates and yourself at the worksite at this stage? -- Yes." (T1-13 commencing L1) ... Further in cross-examination: "Now ma'am, can I put it to you that you arrived at the worksite after David Yates? -- Yes." (T1-27 commencing L48) ... "The Main Roads - wouldn't Mr Yates wouldn't have been there to consider the matter until shortly before the tool box meeting at 8? -- Mr Yates was there when I arrived. I put it to you that he did not arrive until 7.30 a.m.? - - No. -- 21 of 27 -- 22 JUDGEMENT 1 10 20 30 40 50 60 Because you're definite he was there before you got there? -- Yes. He was there when you arrived? -- Yes." (T1-28 commencing L40) However, Mr Yates gave evidence he did not arrive in the locale until about 7.30. He explained he had left home in Cairns at 6 a.m. and fuelled up at the BP Service Station on the north-side of Innisfail at 7.15, consistent, I might add, with him leaving Cairns at about 6. His diary entries made that day bear that out. He arrived at the work area, which he describes as Grey Street in his diary, at 7.30. He explains he would, at that time, have driven the nearby streets to check for sign damage, theft and the like and then parked off Gordon Street and walked to the area where the awning was. He did not put a time on that intervening conduct, but allowing about 10 minutes for it, he would have been at the awning about 7.40, and presumably approached by the plaintiff soon thereafter. I note his diary, Exhibit 9, records at the end of the day: "Started 6 a.m. No lunch. Finished 5 p.m. Book 11 hours." He was obviously entitled, I infer from that entry, to count the travel time commencing at 6 a.m. as part of his total hours worked, hence the total of 11 hours. Had he actually -- 22 of 27 -- 23 JUDGEMENT 1 10 20 30 40 50 60 left home an hour or more earlier to get to the worksite an hour or more earlier, there seems no reason why he would have failed to record that, rather than depriving himself of over an extra hour of working time recorded. For him to have been at the worksite by 6.20 as Ms Apolloni claims, he would have to have left Cairns at about 5 a.m. or perhaps marginally earlier to allow for the stop to fuel up at the BP. There was no reason for him to have left home and arrive so early that day, and also no reason for him not to have recorded such times in his diary. His diary and his recollection clearly contradicts Ms Apolloni's evidence on a critical, if not the critical issue, in the case. His demeanour as a witness was in stark contrast to the uncertainty and equivocation of Mr Howard. Unlike Mr Howard, Mr Yates' account was unshaken by cross-examination. When it was put to him that he was wrong about times, his demeanour appeared to be genuinely incredulous. The transcription of those exchanges does not have the benefit of the visual appearance and demeanour of the witness to which I have just recorded, but it is nonetheless consistent with my observations: "Mr Yates, I put it to you that in fact - that you in fact were the first person to arrive at the site on that day and arrived at a time prior to 6.20 a.m? -- I don't -- 23 of 27 -- 24 JUDGEMENT 1 10 20 30 40 50 60 think so. It's a bit hard to get from Cairns to Innisfail in 20 minutes." (T1-56 commencing L42) ... "At approximately 6.20 a.m. when she injured herself - sorry, I'll take that back, your Honour. A short time after she arrived when she injured herself, she then had a conversation with you, so this is approximate to 6.20 a.m. -- It would have been a very - it would have been difficult to have a conversation as 6.20 a.m. I'd have probably still been around Babinda." (T1-57 commencing L1) Obviously there was a flavour of sarcasm about that response, but it was in fact probably generous. He may well have struggled to have made Babinda by that time. In any event, it is plain from both the content of his responses and my observations thereof that I regarded him as by far the preferable witness on this issue of time. Further to all of this, on the plaintiff's evidence, she supplied Mr Yates with the information he put in his work incident report. His notes that gave rise to the typed report, Exhibit 10, were apparently not kept or located, but nonetheless, there is no reason to doubt the accuracy of its transcription, particularly given Mr Yates' own recollection and his diary. It records the time of the incident which is -- 24 of 27 -- 25 JUDGEMENT 1 10 20 30 40 50 60 what, on the evidence, he must have been told by Ms Apolloni was the incident time, as 7.50 a.m. That is generally consistent with his entry in his diary, in Exhibit 9, where the entry at 8.05 reads, "Lyn sprained ankle (a little before I found out now.)" It is also noteworthy, in the description of the incident at section 16 of Exhibit 10, information which has to have been told to him by Ms Apolloni, was recorded: "Traffic controller had adjusted signage and was returning to vehicle to change vest from high-vis to traffic control. Worker stood awkwardly on a gutter and twisted her ankle." While that is not on all fours with Ms Apolloni's description of the event, what is more striking is there was seemingly no mention made to Mr Yates that the incident occurred because of poor visibility or poor lighting. Had there been, I infer it most certainly would have been included in that work incident report. I am confident in drawing that inference because I note that the report included, by way of recommendation: "Investigation needed to change vests for different tasks. Workers to ensure they use correct walking-about methodologies at all times." If Mr Yates felt it prudent to go so far as to recommend the use of “correct walking-about methodologies”, it is obvious he -- 25 of 27 -- 26 JUDGEMENT 1 10 20 30 40 50 60 most certainly would have felt it prudent to include reference to a problem with poor visibility or lighting had there been any mention whatsoever of it. Having collective regard to the matters I have highlighted, I reject the evidence of Ms Apolloni that the incident occurred in darkness or near darkness, at or soon after 6.20 a.m. I find on the balance of probabilities that the incident occurred at least an hour later, sometime between approximately 7.40 a.m. and 7.50 a.m. at a time of daylight when there was no impairment of visibility by reason of any lack of natural light. It follows the plaintiff's case must fail at the threshold because the breaches relied upon could not have caused the incident. It is of course unfortunate that Ms Apolloni was injured in the incident, but the incident occurred in broad daylight and none of the breaches alleged could even, if found, have been causative of Ms Apolloni's misfortune. There are some cases in which, despite a threshold finding which is determinative of the whole case, it is appropriate for a Court to press on to make other findings about other matters. Generally that occurs where the threshold finding relates to matters of law rather than fact. In the circumstances of this case, I conclude my findings of fact -- 26 of 27 -- 27 JUDGEMENT 1 10 20 30 40 50 60 make it unnecessary to consider and pronounce findings about the legal merits of the plaintiff's argument that if this incident occurred in darkness or near darkness, it was caused by any of the breaches of contract or duty alleged or indeed whether there were any breaches of contract or duty at all. My order is the plaintiff's claim is dismissed. I will hear the parties as to costs... I further order that there is no order as to costs. ----- -- 27 of 27 --