Driver Fatigue and Work Accidents

Kerle v BM Alliance Coal Operations and Ors [2016] QSC 304

It is commonly known that an employer owes a duty of care to its employees to prevent them from being injured in the course of their employment. It is also common that third parties such as labour hire companies and the owner/managers of a work site also owe a duty of care to any workers or lawful invitees on their premises.

This duty of care often involves some of but is not limited to the following:

1. Providing a safe place and or system of work;
2. Providing adequate training and education on the safe work practices;
3. Providing adequate equipment to perform the required tasks safely, etc.

This duty also includes fatigue management for workers. This is particularly relevant in the mining industry, where workers undertake extensive shifts and rosters and usually need to travel great distances to and from their place of work.

THE FACTS

In 2008, the Plaintiff suffered significant injuries in a single vehicle accident whilst driving home from work after four consecutive 12-hour night shifts. He was approximately four hours into a five-hour journey when his car left the road and hit a concrete guard rail.

The Plaintiff sought damages against Axial, HMP and BMA. The Plaintiff ultimately submitted that the accident came about because he was fatigued as a result of working night shifts in the four nights leading up to the morning of the accident.

FATIGUE

The Court found that fatigue caused the plaintiff’s vehicle to be involved in the collision in the absence of evidence to the contrary and the available inferences which could be relied upon.

The Court noted that:

1. there were no other immediate causes for the collision;
2. the Plaintiff had finished his fourth consecutive 12-hour night shift;
3. that the period of being awake was not less than 17 hours and perhaps up to 19 hours; and
4. that period of having to be awake was extenuated by a 5-hour drive to and from work.

RISK OF INJURY

The Court found that the risk of fatigue from working four consecutive 12 hour shifts, together with long distance driving on rural roads, which had an incidence of being 13.5 times higher than urban roads for fatigue related crashes, was a relevant risk.

As to whether the risk was obvious to the plaintiff and something of common sense, his Honour was persuaded by various reports and the experts that the nature of fatigue was such that the Plaintiff was not necessarily able to recognise he was fatigued which impacted the Plaintiff’s ability to make risk assessments, which made him vulnerable.

FORESEEABILITY & BREACH OF DUTY

The Court considered numerous studies and findings in mining activities and noted the controlling minds should have familiarised themselves with the relevant safety issues about fatigue.

Further, the various contractual documents and policies of the defendants considered to various degrees, the risks and dangers of fatigue.

Accordingly, it was not in issue that it was foreseeable. The issue was whether the response to the foreseeable risk was reasonable.

THE LENGTH OF SHIFT

The Court considered that a reduction in shift length could have been considered to reduce the risk of fatigue-related accidents. The defence submitted that a reduction in shift length would not be practical or cost-effective however, did not provide any evidence to support that submission.

The Court found the defendants were not only in the best position to provide evidence about why the proposed measures were not practical, but had exclusive access to such evidence, but did not offer it. Therefore, the submission could not be accepted.

BUS SERVICE

Following the accident, a bus service became available for workers as an alternative to driving. Again, there was a failure by the defence to offer evidence to the contrary or to prove that the employer’s conditions or circumstances had changed.

The Court found, by reference to the experts and their reports, together with an internal survey, undertaken by HMP, of workers, that a bus service would reduce the risk of fatigue-related accidents.

ROOM AVAILABLE

The issue of the availability of a room to rest in came down to not so much as to whether there was a room, but whether its availability was effectively communicated by the defendants.

The Court found the evidence of the administration officer at HMP to be misleading and that the Plaintiff would not have believed he could sleep in his room for whatever period he thought appropriate or that he had exclusive use of it.

EDUCATION

The Court noted that while BMA’s requirement for 12-hour consecutive shifts included detailed considerations of fatigue in their contract with HMP, the training and education either individually or collectively to the Plaintiff, fell short.

The Court held that these shortcomings in the training by the defendants, failed to make any attempt to provide detailed knowledge of the true level of risk involved in fatigue, or the risk of long-distance commuting after working consecutive night shifts.

CAUSATION

The issues of causation centred on:

• the likelihood of the plaintiff adopting the measure; or
• the likelihood of the measure avoiding the fatigue caused the accident.

The Court considered the abovementioned measures (reduced shift, bus, place to sleep and education) and found with ease that each measure favoured a reduction in the risk and that the Plaintiff, along with other workers would have adopted the measures.

The Court also found that the Plaintiff’s act of driving was caused or contributed by the defendants failing to educate him on the nature and extent of the risks of fatigue.

REASONABLE CARE

In summary:

1. The Court found that BMA had breached its duty of care by failing to employ a competent contractor, HMP.
2. The Court found that, as HMP had the actual control of the Plaintiff and ability to implement preventative measures (bus, rooms and education, etc.), their response was unreasonable because there was no evidence to justify ignoring those measures by reference to cost, practicability or conflicting responsibilities. Therefore, it was a short step to conclude that they breached their duty of care.
3. Axial was found to have a non-delegable duty to the Plaintiff, as HMP failed to take reasonable care of the Plaintiff. Therefore, it was unable to delegate its duty to HMP, however competent it thought HMP would be.

CONTRIBUTORY NEGLIGENCE

The initial issues were whether the Plaintiff:

• failed to follow instruction not to operate a vehicle when fatigued; and/or
• failed to adhere to the fatigue management induction and training received from BMA and/or HMP and to act accordingly.

The Court found that there was no contributory negligence by the Plaintiff as follows:

• The Court found that no relevant instruction had been provided regarding driving home after finishing work.
• It was common practice at the mine and the defendants had failed to provide an alternative.
• The statement in the induction “You need to be aware too of your responsibility not to drive to and from your place of work while fatigued” was insufficient.

The Plaintiff’s decision to drive was made due to the defendant’s failure to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks.

The Plaintiff did not have the advantage of the education and training that would have better equipped him to appreciate the hazard.

THE DECISION

On 16 December 2016, the Supreme Court of Queensland held that the risk of accidents caused by fatigue was very well known and could have been obviated by a number of measures including:

• Decreasing shift length;
• Education of workers about the signs of fatigue;
• Providing rest rooms for end of shifts; and
• Providing transport such as buses.

The Court found all of the Defendants liable, his employer, Axial HR Pty Ltd (“Axial”), his host employer, HMP Constructions Pty Ltd (“HMP”) and the operator of the Norwich Park Mine, BM Alliance Coal Operations Pty Ltd (“BMA”).

The employer was not able to delegate its duty of care to the host employer who was found to not have provided adequate training or induction about the risks of injury due to fatigue. It further failed to enforce a policy of rest before long journeys after completion of rostered shifts.

HOW WE CAN HELP

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Workers’ Compensation legislation. If you are dissatisfied with your current representation, our experts can also offer a second opinion.

If you, or someone you know has been injured at work, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.