Fatigue management and ‘shared responsibility’

Mar 2017

As many of Carter Newell’s heavy transport and logistics clients are well aware, the Heavy Vehicle National Law (HVNL) seeks to enforce a proactive sharing or ‘Chain of Responsibility’ (CoR) approach to managing road risks, including fatigue management. Putting aside how one should assess the ‘reasonableness’ of their due diligence in ensuring safe transport, what is paramount is that parties beyond the transport operator (those parties with relevant control or influence) must ensure their contribution to the process is not in breach of applicable laws.

While clearly the facts of Kerle v BM Alliance Coal Operations Pty Limited & Ors1 do not fit per se within CoR rules under the HVNL, the case presents an interesting insight into not only how the Queensland Supreme Court looks at the seriousness of driver fatigue management, but more importantly how it dealt with other entities (in particular the mine operator) in respect to their influence and control on driver fatigue management, not unlike those caught by CoR obligations under the HVNL.

Facts

50 year old Mr Kerle (driver) was an employed dump truck operator at the Central Queensland Norwich Park Mine. He had a long commute between work and home of some 430 kilometres which usually took about five hours. On this subject occasion, the driver had completed four consecutive 6pm to 6am night shifts. During his long journey home, with about 130kms remaining on the journey, having been on the road for some 3½ hours, his motor vehicle collided with an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. The driver suffered major brain and orthopaedic injuries.

The driver sued his employer (Axial), his host employer (HMP), and the operator of the Norwich Park Mine (BMA). The theory underlying his claim was that fatigue from working (consecutive) night shifts caused him to fall asleep at the wheel.

Readers can appreciate in cases like this that while the driver’s recollection of the cause of the crash is important, it’s not entirely necessary for a court to form an inference that a certain cause (in this case, fatigue) was at least a causal factor in the accident.

The court readily accepted that having just completed a long 12 hour overnight shift operating machinery (the last of four), and add to that a long commute home, the driver would not only be tired, but such tiredness would have brought on sufficient fatigue to result in diminished capacity to perform at a normal level and sufficient to impair one’s ability to function safely.

Even accepting the driver had a 30 minute break some two hours into his journey, which would have helped with fatigue, the court said by the time of the accident some 45 minutes later, on a monotonous road with little features, stimulus or traffic, there was sufficient reason to conclude the driver’s fatigue was the cause of the crash.

The court heard evidence that while the driver may have noticed the broad strokes of fatigue, he would not have identified at least these more subtle signs of fatigue:

  • Feeling the need to stretch;
  • Winding down the car window;
  • Turning up the sound volume on the radio;
  • Wriggling around in the seat frequently;
  • Eye blinking slowing down such that your eyes were opening and closing very slowly;
  • Being slow to respond to something on the road that you needed to decrease your speed; and
  • Feeling lethargic and wandering thoughts.

Who was responsible for managing the driver’s fatigue?

The court rejected outright any notion that merely because the risk of driver fatigue is well known in the community and purportedly best managed by the driver, that those responsible for the transport did not need to provide instruction or training on driver fatigue. The court drew on three findings here:

  • The full impact of fatigue is not well understood by the community;
  • The fatigue produced by successive shifts, particularly night shifts involving the disruption of one’s circadian rhythm, is not fully appreciated by the average lay person; and
  • Individuals do not necessarily recognise when they are fatigued – that is, excessively tired people tend to lose the ability to be self-aware of that fact and ‘think they are fine but they are not’.

This being the court’s starting position, it was then little surprise all three parties relevant to the driver’s safe transport (his employer, host employer and the mine operator) were found to owe a duty of care.

By creating the risk in putting the driver through consecutive and lengthy overnight shifts, the employer and the host employer owed a duty encapsulating the driver’s safety in the long drive home. ‘The risk of injury on the drive home is appreciably greater than it would otherwise have been but for the fatigue consequent on those activities'.

In perhaps where there is synergy to CoR expectations, albeit established on different principles, the court held the mine operator (BMA) owed the driver a duty of care in respect to fatigue management. Once again, that duty emanated from the mine operator’s involvement:

‘In both the creation of the risk and its control that is at the heart of the case brought against it. It is BMA who creates the risk, (it is for its profit that the risk is incurred), and it is BMA who is arguably in the best position to control it.’

Was the driver’s fatigue managed properly by those parties?

The court said no.

‘The need for fatigue management plans to manage risks of injury on mine sites [is] legislatively acknowledged. It is a small step from that to risks of fatigue related accidents immediately after work.’

The expert evidence led at trial makes it plain that driving long distances more than 15 hours after last rest, as the driver here was doing, involved a significantly increased risk of accident. The effect of the expert evidence at trial was that while driving at the circadian low point is not ideal, the risks are sufficiently manageable to permit the driving of heavy machinery on a mine site and therefore on the roads. However, the risks increase if one attempts to drive more than 15 hours after the last rest period.

‘The evidence seems consistent that such a rest period would be beneficial in reducing the effects of any sleep loss. The studies show that such a rest period would increase alertness and improve neurocognitive performance.’

The court found:

‘no difficulty with imposing a requirement that workers stay – simply have as part of the contract of employment or hire a requirement that their pay includes a worker travelling by bus back to the camp site, and staying at the camp site for four hours before being at liberty to leave. As to a worker in fact resting – all that those in the defendants’ position can ever do is educate as to the need for rest, provide facilities, and then leave it up to the worker.’

The court concluded that in order to meet the risk of fatigue for the driver, four key points were needed in essential fatigue management training:

  • The degree of risk, both in terms of likelihood and magnitude, particularly to those considered to be at high risk which must have included those facing long distance commuting after work;
  • Education about the basic concepts behind fatigue, the need to pay down sleep debt, education that the total time from last place of rest to the person’s next place of rest should not be greater that 15 to 16 hours, including commuting and importantly that there existed a risk of falling asleep involuntarily;
  • The warning signs of the onset of fatigue; and
  • The ways to meet those risks including the control measures available onsite.

The court was critical of the training and supervision around the driver’s commute, suggesting there was little monitoring of fatigue levels, and a downplaying of the seriousness of fatigue. The information provided to the driver did not assist his own judgement of fatigue (nor for that matter, how others may do so), and did not explain the signs and symptoms of fatigue, how to reduce the risk of fatigue and how to manage it once it manifests.

Should those responsible avoid liability because the driver chose to continue driving?

The court once again said no. Bearing in mind that if the driver’s decision here to continue driving after his rest stop was a break in the chain of causation, the defendants original failures around fatigue management were themselves a direct or indirect contributing cause of that supposedly poor decision.

‘Here the negligent act of the defendants in failing to educate [the driver] on the nature and extent of the risks of driving while fatigued was itself a direct contributing cause of the "intervening act" (if it can be classified as such) of the driver continuing his drive.’

If the driver’s actions weren’t a break in causation, was he contributory negligent?

This question also of course focused on the driver’s decision to drive home, or continue driving, when he was at least aware of some broad signs of fatigue. He knew he had worked consecutive 12 hour shifts, he knew he was tired and decided to drive five hours home regardless. Would a reasonable person have made that decision?

The driver’s duty to himself was not just to look out for himself, but also not act in a way which may put him at risk. While the defendants suggested the driver’s decision to embark on the journey home put him at risk, both the driver’s and statistical evidence heard at trial found this decision was commonplace in the community and at the mine.

While the court found the driver had perhaps misjudged his own growing weariness, the court balanced this evidence with the fact the driver did not have the advantage of proper education and training that would have better equipped him to appreciate the hazard. The court did not therefore apportion any liability to the driver.

Conclusion

While the duties found on the employer and host employer are perhaps not surprising, the extension of the duty to the mine operator for reasons not inconsistent with those espoused by CoR rules under the HVNL, very much reinforces a holistic response to driver safety and fatigue management. Indeed, this decision does so by recognising the need for an integrated fatigue management protocol which manages the risk of driver fatigue not only whilst at the primary work location, but appreciates and manages this risk for a driver after a shift is completed. Whether by a failure to either enforce protocols or by the inadequate protocols themselves, the court here found the employer, host employer and the mine operator should have offered at least some combination of better training and awareness, variation or shortening of shifts, rest areas and transport options to manage driver fatigue.

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1 [2016] QSC 304].

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