The NSW Court of Appeal has overturned the trial judgment and found that an employer was not liable for an employee’s fatigue related car accident. The case required a detailed consideration of the factual matrix and it was found that whilst fatigue was a possible cause of the accident, the plaintiff had not established that it was the most probable cause.
- The New South Wales Court of Appeal has overturned the trial judgment and found that an employer was not liable for an employee’s fatigue related car accident. The case required a detailed consideration of the factual matrix and it was found that whilst fatigue was a possible cause of the car accident, the plaintiff had not established that it was the most probable cause.
Coalroc Contractors Pty Ltd (Coalroc) employed the plaintiff as a coal miner at Ulan West Coal Mine (the Mine) in New South Wales. On 17 April 2016, the plaintiff was driving home after three successive 12-hours shifts. During the shifts he would stay at a caravan park nearby the Mine, however at the end of the three shifts he would drive home, a trip that would normally take approximately 3 hours and 15 minutes. During the drive home, the plaintiff sustained serious injuries when his vehicle drove off the road, across oncoming lanes and collided with two trees.
The decision at trial
At trial, the trial judge found in favour of the plaintiff and awarded damages in the sum of $1,130,782.28. The trial judge found that work-induced fatigue was the cause of the incident and Coalroc was negligent in failing to require the plaintiff to submit a personal travel management plan to manage his fatigue on the drive home. The trial judge applied a 30% reduction in damages for contributory negligence as the plaintiff failed to take heed of signs of fatigue.
The issues on appeal
The key issues on appeal were:
- whether the plaintiff had discharged the evidentiary burden to establish that fatigue was the cause of the accident;
- the scope of duty held by Coalroc and whether that duty required Coalroc to insist on the plaintiff submitting a travel plan for its approval; and
- whether the trial judge had erred in the causation findings.
The decision on appeal
The Court of Appeal overturned the trial judge’s finding that fatigue was the cause of the accident. The Court of Appeal found that although fatigue is potentially the most common cause of single vehicle accidents, that does not necessarily mean that it was the probable cause of this specific incident. The evidence indicated that the cause of the incident was a momentary inattention on the part of the plaintiff rather than his loss of consciousness. The Court of Appeal reasoned that the plaintiff needed to have provided more evidence to establish that fatigue was the more probable cause of the incident where there were other possibilities for the momentary inattention, such as the plaintiff’s mind wandering, a phone call or adjusting the car radio. The Court of Appeal emphasised that the plaintiff needed to prove that fatigue was the probable cause of the incident, not merely a possible cause.
The Court of Appeal refrained from commenting on the scope of Coalroc’s duty of care, specifically whether the primary judge erred in failing to find that the duty owed to the plaintiff ceased when he ‘left the curtilage of the worksite’. However, the Court of Appeal overturned the trial judge’s finding that Coalroc owed a duty to insist that the plaintiff submit a travel fatigue management plan for its approval. The Court of Appeal reasoned that there was no way for Coalroc to enforce or monitor employee’s compliance with the travel plan once they leave the mine. In those circumstances, the Court of Appeal found that requiring a travel management did not amount to a reasonable precaution against the risk of fatigue and it followed that Coalroc did not owe this duty of care.
The Court of Appeal considered the trial judge’s findings regarding causation were not supported by the evidence. The Court of Appeal reasoned that even if the plaintiff had taken a rest break as required under a travel management plan, this did not necessarily mean that the accident would not have occurred.
Implications for you
This case has significant factual parallels with the Queensland Supreme Court decision of Kerle v BM Alliance Coal Operations Pty Limited & Ors  QSC 304. Importantly, the Court in Kerle found the plaintiff’s accident was caused by fatigue. The plaintiff failed in this matter because the Court of Appeal found he had not discharged the evidentiary onus to prove fatigue was the probable cause of the car accident.
While the employer was successful on appeal, this was largely due to the way the plaintiff worker conducted his case, and as a result it still serves as an important reminder for employers with workers completing long shifts and requiring long drives home from rural worksites. Employers need to ensure that their fatigue management strategies and trainings are adequate.