The WA Supreme Court, Court of Appeal recently found against the
appellant worker, Ms Fraser, in Fraser -v- Burswood Resort
(Management) Ltd  WASCA 130.
At 4.00am on 10 December 2001, Ms Fraser finished her eight hour
shift as a croupier at Burswood Casino, changed out of her uniform
and started driving to her home. Half an hour later she
inadvertently drove on to the gravel verge and in an effort to gain
control of her vehicle caused it to roll four or five times. Ms
Fraser was seriously injured and suffers from continuing
Ms Fraser claimed damages from Burswood claiming the accident
occurred as a result of her falling asleep while driving home and
asserted that Burswood breached a number of duties which would have
reduced the risk of that occurring.
In essence, these breached were the failure of Burswood:
to warn Ms Fraser about, or mitigate the effects of the
circadian cycle upon workers required to work night-shifts;
to not adjust her shift so that they did not finish in the
pre-dawn hours, which were said to be between 2.00 am and 6.00
Prior to trial, the parties agreed that the quantum of loss and
damage suffered by Ms Fraser as a consequence of the injuries
sustained during the accident was $1,000,000 plus special damages,
so only liability was in dispute at trial.
The trial judge found that Burswood had a duty to warn Ms Fraser
of the identified risk, alter Ms Fraser's night-shift roster
and offer Ms Fraser a place and the opportunity to rest until day
break, however, he dismissed her claim for damages on two grounds
Firstly, Ms Fraser had not established that the accident was
caused by her falling asleep at the wheel. He commented that it was
merely supposition or conjecture on her part that she must have
fallen asleep and the evidence in this regard was less than
Secondly, he found that even if Burswood had performed the duty
of warning Ms Fraser of the risk of falling asleep while driving
home, it would not have altered her actions or the events which
occurred that morning.
During the trial, Ms Fraser relied heavily on the evidence of Dr
Hartley, but the trial judge was not persuaded by the majority of
Ms Fraser appealed against those findings arguing that the trial
judge failed to draw inferences that should have been drawn from
the facts. The appeal covered 6 grounds and was heard by the Court
Grounds 1 and 2 related to the trial judge erring by finding
that Ms Fraser had not momentarily fallen asleep or undergone a
micro-sleep immediately before her motor vehicle left the
The Full Court noted with some significance that in her first
description of the accident in her evidence, Ms Fraser made no
reference to falling asleep. Her Counsel accepted that she was
expressing a conclusion rather than a recollection. They found that
a lack of any such symptoms leads to the conclusion that, on the
balance of probabilities, it is less likely that the cause of Ms
Fraser's vehicle leaving the road was her falling asleep, and
more likely than not that it was some other cause, such as
inattention. Grounds 1 and 2 were therefore dismissed.
Grounds 3 to 6 related to the trial judge's failure to find
Burswood's breach of the duty to warn as to the effects of
the circadian cycle caused the accident;
Ms Fraser would not have delayed her journey home from work if
aware of the risk; and
Burswood was under a duty to arrange Ms Fraser's shifts so
that they ended at or after sunrise, or at or after 6.00 am.
As, Ms Fraser could not establish that she fell asleep prior to
her vehicle leaving the roadway under grounds 1 and 2, her appeal
must fail and it was not necessary to deal with the other grounds.
Nonetheless each ground was dismissed.
Burswood raised four grounds of cross appeal which all
challenged the trial judge's conclusion that Burswood was under
a duty to warn Ms Fraser of the risks to which she was subject when
driving home in the pre-dawn hours. As the appeal was dismissed, it
was unnecessary to resolve the issues raised, but for the sake of
completeness, each cross appeal should also have been
This case highlights that even if an employer breaches its duty,
unless that breach directly results in loss, there is unlikely to
be damages awarded.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).