Australia: Fatigue management failings lead to $1.2 million judgment against multiple parties

Last Updated: 28 December 2016
Article by Terry Killian and Vanessa Price
Services: Insurance, People & Workplace
Industry Focus: Insurance

What you need to know

  • The Supreme Court of Queensland has found three parties liable for the serious injuries sustained by a worker in a car accident that occurred during his drive home from work.
  • The three parties were the labour hire agency that employed the worker, the contractor with which the worker was placed, and the operator of the mine at which the worker was undertaking his work.
  • The decision demonstrates how multiple parties may be found to share responsibility when negative events impact a worker even outside the confines of the workplace, and highlights the type of steps that should be taken to minimise risk when fatigue is a real concern for workers.

On 16 December 2016 the Supreme Court of Queensland issued a judgment in which three separate parties were held liable for $1.2 million in compensation payable for a worker's serious injuries.

In Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304, the Court found a mine operator, contractor and labour hire employer liable for serious injuries sustained by the plaintiff in a single vehicle motor accident on his drive home after completing the last shift of his tour. The plaintiff was employed at the Norwich Park mine, and had just completed his fourth consecutive 12 hour night shift. The drive was about 430kms and generally took five hours. The Court held the plaintiff's fatigue caused the accident, and his fatigue was in turn caused by a breach of duty of care owed by each of his employer, a labour hire company (Axial), the contractor with whom his employment had been placed (HMP) and the operator of the mine (BMA).

Who was liable and why?

Since the injury did not actually occur at the workplace or during the course of a shift, the defendants submitted that any duty of care they owed did not extend to the injury sustained.

The Court disagreed, finding that the defendants did in fact owe a duty of care. The Court extended the circumstances considered in earlier cases of a similar nature, where there was generally some contractual provision connecting the plaintiff's employment with travel to and from the workplace, such as train use. Duties have also been found to exist where the location of the transport accident was an incident of the worker's employment, such as a campsite provided by the employer.

However, in this case there was no such connection, as the plaintiff's transport was independent to his employment. The Court held the duty nevertheless applied due to four factors:

  1. The defendants created the risk by requiring the plaintiff to work four consecutive 12 hour night shifts, causing inevitable fatigue.
  2. The plaintiff faced vulnerability, as it was proven that workers cannot reliably assess their own fatigue and functioning. As such, the risks were not considered obvious.
  3. The worker was driving as a response 'to the demands of his employment'. The remoteness of the mine meant travel was inevitable, and was in fact common among employees.
  4. The Court considered that the only possible way to reduce the risks involved a response from those in charge of the workplace.

As to the individual defendants, the Court held that even though the employer (Axial) transferred the worker to the host employer at external venues, it still retained control over the worker. As a result, both Axial (as the direct employer of the plaintiff) and HMP (as the contractor with whom the plaintiff was placed to complete his work) owed duties of care.

The mine operator, whilst not having an employer/employee relationship with this plaintiff, still owed a duty of care. BMA was found to have created the risk, due to its shift requirements which caused the fatigue and to have exercised significant control.

What ought to have been done to discharge the duty?

The Court held that to discharge the duty of care, measures to be taken extended to educating workers of the risks and injuries associated with their work, shift length control, providing rest areas, as well as transport facilities to and from the site. There was no evidence that it would be impracticable to implement controls on shift lengths. There was also no evidence of any expense, difficulty or inconvenience in providing bus services. Even though a bus would only partially reduce travelling distance, it would still be far less tiring than driving the entire trip. Although accommodation rooms for resting were already available, their usage was not adequately explained to employees. Thus the plaintiff did not know he could use them after his shift had ended.

The Court held that education and training must cover four main points: the degree of risk faced by long distance commuters, an understanding of fatigue and its relationship with work and commuting, warning signs, and control measures to respond to risks. Although the defendants had provided inductions and training courses, these were considered inadequate. The Court held that detailed knowledge of the true level of risks, their effects and response tools was required. Distinction must also be made where the employee, due to reasons such as age, is in a high risk category.

Chain of causation

The defendants sought to argue that the plaintiff broke the chain of causation, by taking a 30 minute break along the way but not staying longer so as to properly rest. The Court held that although this was an intervening act, it was still directly caused by the defendants' breach of duty. Had the defendants provided adequate education of the risks of fatigue, the plaintiff would have been able to better identify his risks and take greater precautions.

Apportionment of liability

HMP failed to comply with the safety standards set out in its contract with BMA, thus causing the ultimate injury. Between these two parties, 90% contribution was apportioned to HMP. In practical terms the Court found BMA had developed a comprehensive fatigue management program, but had not taken sufficient steps to ensure its contractors followed it. The Court also found that an effective contractual indemnity was in place between BMA and HMP, such that HMP was precluded from recovering contribution / indemnity from BMA.

As between HMP and Axial, the Court held that although Axial ought to have been aware of the risk and had means of responding, HMP knew that Axial expected it would conduct inductions. Further, Axial contractually relied on HMP to have safe work practices in place. Apportionment was therefore ordered at 60:40 against HMP.

Conclusion and implications for employers and labour hire companies

This decision demonstrates that complicated issues can arise where multiple parties play a part in bringing a worker into a work environment, such as through a labour hire arrangement. Indeed, our People & Workplace team members have recently written about the obligation for parties to consult with each other when they share work health & safety obligations and about the increasing scrutiny being placed on the full labour supply chain when a vulnerable worker is mistreated.

This decision highlights that:

  1. the obligations imposed on employers, contractors and mine operators to manage fatigue extend beyond the location and time that work is carried out
  2. it is not enough to have in place appropriate fatigue management protocols if steps are not taken to ensure they are actually being complied with
  3. particularly in cases where the work location is somewhat remote (such as a mine site), an appropriate response to the risk must take account of the fact that post-shift travel from the work site is inevitable
  4. education of workers is important but the risk management framework must take account of the fact that fatigued individuals are usually poor judges of their own fatigue levels
  5. in this particular case, a reasonable response to the risk would have required a combination of controls on shift lengths, providing rest areas for workers after they had completed their last shift and before travel, and providing transport options to and from the mine site to major centres, so as to reduce the incidence of workers driving immediately after completing their last shift
  6. on an issue that has been debated for some time, the Coal Mining Safety and Health Act did not give rise to a private civil right of action for the benefit of the plaintiff but it did inform the reasonableness of steps taken in response to the common law duty.

Given some of the issues decided in the case, there remains every prospect of an appeal by one or more parties.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories

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