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Employers may be found liable for injuries to their employees or contractors that occur long after a work shift has ended and hundreds of kilometres from the workplace.

Such was found to be the case in Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304.

In that decision, the Supreme Court of Queensland held that a mine operator, a labour hire agency and a host employer were all liable for the injuries of a worker who was in a car accident on his drive home from work.

Background to the case

The basic facts of the case are as follows.

At about 6.30am on 30 October 2008, Harold Kerle commenced his drive home from work. He was employed as a dump truck operator at a mine in Central Queensland. His home was in a small town about 430 kilometres away. The drive would normally take about five hours. He had just completed four consecutive night shifts, the last finishing at 6am. Shortly before 10am, and nearly 300kms into his journey, his motor vehicle collided with a rail on a bridge crossing on the highway. His vehicle then collided with a concrete wall at the far end of the bridge. Kerle suffered a serious injury, most significantly to his head.

Kerle subsequently sought damages against the three defendants in the Supreme Court of Queensland.

What happened next

The Court held the defendants liable to compensate Kerle for his injuries. In reaching its decision, it stated the magnitude of the risk to Kerle was high, as “serious injury or even death was possible on a long journey home when fatigued.” This was not a risk, the Court said, “that could be simply ignored.”

The Court then went on to state that it was up to the defendants to redress that risk (which they themselves had created by insisting on consecutive 12 hour night shifts) by establishing the right policies and procedures. Significantly, the Court placed no responsibility on Kerle for the accident.

It is worthwhile noting that the defendants had implemented measures with the intention of reducing the risk of fatigue-related accidents occurring. These were, namely, the provision of:

  • a rest room (Kerle, however, was not informed or aware of his entitlement to use the room after work);
  • information and materials such as a fatigue management booklet;
  • a fatigue management policy; and
  • induction and refresher courses (which alerted workers to the risks and signs of fatigue).

For various reasons, however, such measures were ultimately considered by the Court to be inadequate.

The take-away

This was a novel case that demonstrates that employers may face liability for injuries sustained by their workers even where the cause of those injuries appear to be only remotely connected (by time and distance) to the workplace.

The decision is particularly relevant for employers whose workers are required to work long hours or night shifts, particularly in circumstances where they may have to travel long distances in order to return home.

Usefully, the Court enunciated the various measures that employers must put in place in such circumstances to eliminate or minimise the risk of liability. They are:

(a) limit the length of shifts, ensuring in particular that workers do not go for more than 15 hours without rest (factoring in the length of time it takes for workers to get to work and return home);

(b) if necessary, provide a bus service to transport workers;

(c) provide a place for workers to rest after shifts; and

(d) provide adequate education and training so that workers understand the risks associated with fatigue and can identify when it is safe to drive and when they need to rest before doing so.

Pointon Partners is able to assist in advising, drafting and/or reviewing employment policies and procedures.

If you require any assistance or would like to discuss this article, please contact Michael Bishop, Amelita Hensman or Jonathan Slade.

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