In this alert, Partner Robert Tidbury and Solicitor Hannah Staunton discuss the recent decision of Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29 where the NSW Workers Compensation Commission upheld the decision of the Arbitrator to award compensation to the estate of a deceased worker who suffered fatal injuries in a journey home from work caused by work-related fatigue.

Facts and relevant law

A NSW female worker died whilst on her way home from work on 22 May 2013. The deceased worker had commenced her sixth straight night shift, having worked 60 hours in the 5 days prior. On the day in question she commenced work at 7:00pm however she was sent home at around 9:30pm due to a mechanical issue on site. The fatality occurred at approximately 9:44pm when she veered onto the other side of the road and collided with a B-double truck.

The Workers’ Compensation Act 1987 (NSW) (the Act) provides access to compensation for the dependant(s) of a worker who has died during his / her journey to or from work (Sections 9 and 10). The deceased worker’s father, as the administrator of the deceased’s estate, brought a claim pursuant to section 25 of the Act which allows for a lump sum death benefit to be paid if the worker’s death results from an injury arising out of or in the course of employment.

It was argued on behalf of the estate that the deceased worker’s death was caused bylong hours of employment being 12 hour shifts resulted in fatigue and, as a consequence the hours of employment played a material and substantial role in the deceased falling asleep and losing control of her motor vehicle”.  Evidence in support of that position was given by family members who had observed the deceased worker complaining of tiredness in the weeks leading up to the fatal incident. 

In addition, the police officers who attended the scene of the fatal incident gave evidence that in the absence of mechanical defects in the deceased’s vehicle, the most likely cause for its action in suddenly crossing to the wrong side of the road and into the path of an oncoming truck was fatigue associated with long working hours. 

The employer’s insurer rejected the claim on 21 February 2014 arguing that there wasn’t a real and substantial connection between the employment and the accident out of which the personal injury arose as required by section 10(3A) of the Act.  In support of the employer’s position, several former work colleagues of the deceased gave evidence that in the lead up to her accident, she did not appear tired or fatigued. 

The matter was heard before an Arbitrator and on 4 December 2014 judgment was handed down in favour of the deceased worker’s estate. The Arbitrator found that “fatigue was the probable cause of the accident and that it had been caused by long hours of work over the previous five days”.

Decision on appeal

On appeal, the employer argued that the Arbitrator erred in inferring that the accident occurred because of fatigue due to working long night shifts. The employer submitted that the inference drawn by the Arbitrator was an unfounded assumption based upon speculation and not based on any probative evidence. Further, the employer submitted that the Arbitrator failed to acknowledge that the deceased worker had the opportunity to rest and sleep in the 12 hour period between each shift, that she appeared well rested and showed no signs of fatigue at work, that she had become accustomed to working night shifts, and that she had only worked 2.5 hours of the final shift.

The employer failed in its appeal. While President Keating acknowledged that there may have been other possibilities for why the deceased worker’s vehicle veered onto the incorrect side of the road, he concluded that, in light of the evidence of family members that the deceased had been complaining of tiredness and fatigue, coupled with the unexplained steering of the vehicle over to the incorrect side of the road and into an oncoming vehicle, the more probable inference was that the accident occurred because the deceased fell asleep due to work related fatigue. 

Take away points

  • An employers’ duty of care owed to its employees encompasses the prevention, management and control of fatigue arising from the performance of their employees’ duties.
  • Employees working in the mining, construction, transport and manufacturing industries, whose duties require them to regularly perform shift work, do overtime, have long commute times and work block shifts, are particularly at risk of suffering injury associated with work related fatigue.
  • To minimise and address the risk of their employees suffering personal injury on the way to or from work, it is essential that employers implement fatigue management strategies which take into account matters such as employees’ shift lengths, structuring of work schedules and rostering, the proximity of employees’ residence to their work, job demands as well as environmental conditions.