In Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 the Western Australian Court of Appeal was asked to consider whether a casino was liable for is employee ‘falling asleep’ at the wheel after a night shift. At first instance, the trial judge held the employer not liable and dismissed the claim.

The plaintiff worked as a croupier at the Burswood Casino and had just finished an 8 hour shift and was travelling home. At about 4:40am she allegedly fell asleep, her vehicle moved onto a gravel verge and when she tried to moved back onto the sealed road, her vehicle rolled four or five times. She was seriously injured. The plaintiff alleged her employer breached its duty of care by not adjusting her shifts so as not to finish in the pre-dawn hours and failing to warn her about accumulated sleep debt and circadian cycle which would have reduced the risk of the accident occurring.

The critical factual issue was whether the worker fell asleep before leaving the road. The plaintiff’s evidence that she must have fallen asleep was found to amount to mere supposition or conjecture because she did not give direct evidence of personal knowledge that she fell asleep. Therefore the trial judge found the plaintiff had not fallen asleep immediately before the vehicle left the roadway. This finding was upheld on appeal.

In relation to the duty to warn, it was held at first instance Burswood’s duty of reasonable care required it to warn of the risk of falling asleep when driving home in the pre-dawn hours and the effects of the circadian sleep cycle (24 hour biological cycle). It was found Burswood had breached this duty but that on causation, the plaintiff would not have delayed her journey home even if she had been so warned. Based on the plaintiff’s evidence, that after finishing her shift that her prime objective was to get home and get to bed, it was held Burswood’s breach would not have prevented the motor vehicle accident.

The trial judge’s finding that Burswood was not under a duty to arrange the plaintiff’s shifts to finish in the pre-dawn hours was also upheld on appeal on the basis the trial judge had properly taken into account the evidence on the issue, particularly that there was no practice in any industry where shift times were stipulated by reference to the risks associated with workers driving home in the pre-dawn hours. Nor was there any evidence prior to the accident of any government department or agency giving a recommendation to adopt the practice. Consequently the appeal was dismissed.