Personal injuries sustained to labour-hire employee due to fatigue-related motor vehicle accident whilst travelling home from mine in Central Queensland.

In Issue

Liability of mine operator, employer and host employer for injuries sustained in fatigue-related motor vehicle accident

The Background

The plaintiff, Harold Kerle, worked at the Norwich Park Mine in Queensland (the mine), operated by the first defendant (BMA). He was employed by the third defendant (Axial) and placed with the second defendant (HMP) under a labour-hire arrangement.

On the morning of 30 October 2008 at 6am the plaintiff left the mine via his personal car (which he had parked at the mine), after completing his roster of four consecutive 12-hour nightshifts (6pm to 6am). The plaintiff lived approximately 430km from the mine, in Monto. Shortly before 10am, the plaintiff’s car collided with a rail on a bridge crossing at Alma Creek on the Burnett Highway, with the vehicle then colliding with a concrete wall at the end of the bridge. The plaintiff suffered serious injuries, including a brain injury, and had no memory of the period immediately prior to the accident. The plaintiff alleged that the accident was caused by fatigue.

Issues at Trial

As the parties settled quantum prior to trial, only liability was in dispute.

The crux of the allegations against each of the defendants were that they failed to ensure proper systems were implemented to manage the risk of fatigue for workers after they had completed their roster and were travelling home. Such an allegation was founded largely upon a failure to take four key steps – control shift lengths, provide a place to rest, provide suitable advice and warnings of the risks of fatigue and/or provide a bus service for workers to regional centres (such as Rockhampton and Mackay).

BMA also had its own unique arguments about the nature and extent of any duty of care owed by it to the plaintiff, namely the liability of a principal to the employee of an independent contractor.

The Decision

McMeekin J found at the outset, as a matter of fact, that in the absence of any other plausible explanation, fatigue was a significant causal factor of the accident. The assessment of liability was therefore premised on this finding.

The court held that BMA did owe a duty of care to the plaintiff. BMA was in control of the contractual arrangements and the imposition of consecutive 12 hour night shifts. The nature of the risk was one peculiar to the mining industry and BMA exercised a high degree of control over the premises, the induction process and the required shifts, and the plaintiff was vulnerable in the relevant context.

For HMP and Axial, the scope of their respective duties of care extended to ensuring that reasonable steps were taken to protect the plaintiff after he had left the mine site. This was justified due to the fact they had created the risk (consecutive night shifts), expert studies had shown that a worker’s subjective experience of fatigue is not a reliable gauge of actual fatigue, long distance commuting was inevitable in this work and the only practicable way of minimising the risk required a response from persons in control of the workplace.

As to breach of duty, ultimately the plaintiff’s allegations were accepted, with detailed comments made upon the capacity of each defendant to shorten the shifts (so as not to exceed 15 hours of awake time between places of rest), to make accommodation available to the plaintiff, to provide a bus service to regional centres and to ensure that adequate training and instruction was provided to ensure that fatigue management practices did not rely for their efficacy upon the subjective assessment of the individual worker.

The court held that there was no break in the chain of causation by the plaintiff stopping at a roadhouse en route and then continuing on with his journey, despite his decision not to stop and rest / sleep at the roadhouse.

As between BMA and HMP, the apportionment was 10%/90% respectively; as between HMP and Axial the apportionment was 60% / 40% respectively.

A critical feature in these findings were a number of the factual conclusions, including:

  • Whilst it was conceded the plaintiff did have a permanent room available to him in the nearby camp (15 minutes from the mine), he did not know that it was permanent and was under a misapprehension that his keys had to be handed in at the end of his roster;
  • If a bus had been made available to a nearby regional centre, he would have used it and it would have provided him with the opportunity to rest before driving the balance of the journey to Monto;

The plaintiff did not appreciate the risk of fatigue associated with fatigue-related symptoms such as yawning, despite his extensive driving experience (at the time of the accident he was 50 years old).

Implications for you

This decision is founded strongly in the factual findings made by McMeekin J, and the nature of the expert evidence led by each the plaintiff and defendants from relevant fatigue experts.

It is also to be noted that this decision relates to injuries sustained in late 2008, and the nature of the mining industry’s control of fatigue-related incidents has changed radically since then.