The accepted position has always been that an employer’s common law duty of care ended after working hours. However, the Supreme Court of Queensland has awarded $1.25 million to Harold Kerle, who was seriously injured after he fell asleep at the wheel of his car on his way home from work. The critical issue was whether the labour hire employer, the host contractor and/or the mine operator owed a duty to manage the plaintiff’s fatigue and if so, whether they did enough to discharge that duty.

The plaintiff was employed at a Central Queensland mine. After completing four consecutive night shifts, the plaintiff commenced a five hour drive to his home. The plaintiff’s vehicle ran off the road during the journey. The plaintiff had no independent recollection of events because of his head injuries, so the cause of the accident was unknown.

The defendants denied liability on the basis that the incident occurred after the plaintiff had left the workplace. They argued that they were not in a position to control the inherent risks from travelling home on the highway and that the worker was ultimately responsible for deciding whether he was fit to drive or needed to rest.

The Court disagreed, finding that each defendant owed a duty to take reasonable steps to protect the plaintiff even after his work had ended:

  • the labour hire employer and the host contractor created the risk by setting consecutive 12 hour night shifts which were likely to cause fatigue
  • expert studies showed that a fatigued worker’s judgment may be affected in a way similar to alcohol, so that a worker thinks they are fine when they are not
  • a long distance commute was inevitable given the remoteness of the mine. The defendants knew that at least half of mine workers (including the plaintiff) travelled more than three hours between their homes and the mine, and
  • the only practicable way of minimising the risk of fatigue was by intervention to stop workers driving whilst they were affected by fatigue. The defendants were each in a position to take steps to intervene, such as controlling shift lengths or consecutive shifts, providing a place to rest after the shift and before allowing the worker to go home, reminding workers of the risk of fatigue before driving home, or providing a bus service.

The labour hire employer and the host contractor had direct control over the worker and therefore bore the majority of the blame, sharing 90% liability between them. The mine operator was liable even though it had a comprehensive fatigue management programme because the operator had not ensured the programme was followed by the labour hire employer and host contractor.  The mine operator was also criticised for allowing the consecutive nightshifts which caused the fatigue.

The Court did not blame the plaintiff for the accident as the plaintiff was unable to appreciate the extent of his fatigue.

Kerle v BM Alliance Coal Operations Pty Limited & Ors

The duty of care owed to workers is an onerous one for all involved in their supervision. It can reach beyond the factory gate to the consequences of excessive demands placed upon them during working hours.