Ensuring the safety of fatigued workers on their journey home
1 November 2018
The decision of the Queensland Supreme Court in Kerle v BM Alliance Coal Operations Pty Limited & Ors  QSC 304, highlights the responsibilities of labour hire companies, host employers and mine operators for the safety of fatigued workers on their journey home.
At about 6.30am on the morning of 30 October 2008 Mr Harold Kerle commenced his drive home from work. He was employed as a dump truck operator at the Norwich Park Mine and his home was 430 kilometres away, or about five hours drive.
Mr Kerle had just completed four consecutive 12 hour night shifts, the last finishing at 6am. Mr Kerle drove for approximately 2 hours, had a 30 minute break and then drove on for another hour or so prior to the accident.
Shortly before 10am, and nearly 300kms into his journey, Mr Kerle’s vehicle collided with an Armco rail on a bridge crossing and then a concrete wall. Mr Kerle suffered significant injuries including a brain injury as a result.
Mr Kerle pursued a claim against BM Alliance Coal Operations Pty Ltd (“BMA”), the operator of the mine, HMP Constructions Pty Ltd (“HMP”), his host employer, and Axial HR Pty Ltd (“Axial”), his employer.
He claimed that they each breached duties owed to him in various ways and thereby caused his injuries. The theory underlying the claim was that the accident came about because Mr Kerle was fatigued as a result of working night shifts in the four nights leading up to the morning of the accident. Each of the defendants denied liability. Damages were agreed at $1,250,000.
Despite the accident occurring long after Mr Kerle had left the workplace the Court found that Axial and HMP owed a duty of care to Mr Kerle due to the interaction of the following four factors:
Axial created the risk by the insistence on consecutive 12 hour night shifts with its consequent, and inevitable, fatigue. The risk thus emanates from the work activities.
Expert studies on the impact of fatigue have long shown that the worker’s subjective experience of fatigue is not necessarily a reliable guide to the individual’s capacity to function safely.
The workforce must travel from places remote from the mine site – long distance commuting was inevitable. The worker is therefore responding to the demands of his employment.
The only practicable way of minimising the risks thereby created required a response from persons in control of the workplace and work systems.
Whilst Axial tried to argue that Mr Kerle was under the control and supervision of HMP and therefore they were not liable the Court found that Axial continued to retain some control over Mr Kerle and therefore owed a duty of care to Mr Kerle.
BMA was found to have owed Mr Kerle a duty of care as it created the risk by requiring Mr Kerle, through its contract with HMP, to complete consecutive 12 hour shifts.
The Court found that Mr Kerle’s fatigue caused the accident. He was in the high risk category for fatigue as:
The shifts were at night
The shifts were 12 hours each
He had completed four successive night shifts
The fatigue was caused by a breach of duty by BMA, HMP and Axial. BMA, HMP and Axial failed to do enough to reduce the risk of fatigue. They should have:
Reduced the length of shifts so that for workers, such as Mr Kerle, the total time from place of last rest to the worker’s next place of rest did not exceed 15 hours.
Adequately educated workers on the signs and risks of fatigue.
Provided a bus service to transport workers to major centres with stops along the way.
Provided a place for Mr Kerle to rest after his shift.
The case has broader implications than just the mining industry and can apply to any industry where overtime or long shifts are regular or consistent.
This case highlights the need to protect workers from fatigue by ensuring that:
Employers are abreast of the developing knowledge regarding fatigue and are adequately educating workers on fatigue. Education for workers in relation to fatigue should address:
The degree of risk for that worker, both in terms of likelihood and magnitude;
The basic concepts behind fatigue, the need to pay down sleep debt, education that the total time from last place of rest to the worker’s next place of rest should not be greater that 15 to 16 hours, including commuting and that a risk of falling asleep involuntarily exists;
The warning signs of the onset of fatigue;
The ways to meet those risks including the control measures available.
There are appropriate procedures and policies in place to manage fatigue and that these are being implemented and complied with.
There are appropriate transport measures in place to prevent fatigue.