Harold Kerle had completed four consecutive 12 hours shifts at the Norwich Park Mine. He made the fateful decision to commence his journey home at about 6.30am on the morning of 30 October 2008, moments after he had finished his final shift. He lived in Monto, a five hour 430 kilometre drive away.
Shortly before 10am, Kerle crashed his car into a concrete wall after veering onto the right hand side of the road and colliding at high speed on an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. Kerle sustained significant injuries, including a brain injury and fractures of his ankle, nose and skull. Kerle had no memory of the accident or the events leading up to it.
Alleging the accident was caused by fatigue, Kerle sued his employer Axial HR Pty Ltd (“Axial”), his host employer, HMP Constructions Pty Ltd (“HMP”) and the operator of the Norwich Park Mine, BM Alliance Coal Operations Pty Ltd (“BMA”).
Under the law of negligence, an employer owes a duty of care to take reasonable precautions for the safety of its employees. This is a non-delegable duty.
In McLean v Tedman  HCA 60, it was said by a majority of the High Court that:
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming: The Law of Torts (6th ed, 1983) pp 480–1). And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”
In order for a Plaintiff to succeed in negligence, it must be established that the duty of care was breached, and that the breach of duty caused the Plaintiff to suffer loss. The Plaintiff bears the onus of proof of establishing these matters.
As Dixon CJ said in Jones v Dunkel (1959) 101 CLR 298:
“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”. But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture.”
A partial defence to the tort of negligence is contributory negligence, which results in an apportionment of liability between the Plaintiff and the Defendants. Such a defence in effect reduces the amount that the Defendants must pay the Plaintiff.
Additional duties for mine operators, contractors and employers are found in the Coal Mining Safety and Health Act 1999 (“the Act”) and its Regulations. Section 42 of the Regulations provided that:
A contractor at a coal mine has an obligation to ensure, to the extent that they relate to the work undertaken by the contractor, that provisions of the Act and any applicable safety and health management system are complied with.
Justice McMeekin of the Queensland Supreme Court was required to decide whether the mine operator BM Alliance Coal Operations (BMA) owed Kerle a duty of care, whether each of the Defendants had breached their duty of care, and whether any such breach had caused the accident.
Other questions for determination included whether Kerle was contributorily negligent, and what apportionment of liability should be made between the defendants.
BMA denied that it owed Kerle a duty of care as it had no contractual relationship with him, and it had a services agreement (“the services agreement”) with the host employer HMP, which required HMP to provide services to BMA and discharge any duties owed to workers. The services agreement required HMP to put measures in place to guard against safety risks.
Mc Meekin J held that BMA did owe a duty of care as it controlled HMP through its contract and it also required workers at the mine site to work in accordance with the particular system of work that created the risk.
McMeekin J held that all three defendants had failed to discharge their respective duties of care for the following reasons.
Firstly, the risks arising from fatigue were reasonable foreseeable, partly because BMA itself had in 2006 published a booklet entitled “Managing Shiftwork and Fatigue – A shared responsibility” containing various facts and statistics about the risks caused by fatigue. McMeekin J held that such information would also have been available to the other two defendants.
Second, in respect of whether there were reasonably practicable means of obviating such risks, McMeekin J held that:
“There is no difficulty that I can perceive 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. If there are difficulties with these propositions I would expect evidence to be led proving the point… It is here that I find the lack of evidence from the defendants inexplicable. If there were reasons why the proposals advanced were not practicable then I would expect evidence from the defendants demonstrating the point.”
Additional reasonably practicable means of obviating fatigue risks accepted by McMeekin J included having in place proper limits on the length of shifts, the provision of a bus service from the mine site, providing a place for Mr Kerle to rest after the shift and provide an adequate program of education for workers about fatigue and its risks. None of these means were available to Kerle on the day of the accident.
For these reasons, all three defendants had breached their duties of care to Kerle.
McMeekin J held that in spite of Kerle’s inability to recall how the accident occurred, it could be inferred that it was caused by fatigue for the following reasons:
1. Given among other things the length of the shifts worked and the expert evidence given on fatigue, Kerle was fatigued at the time of the accident.
2. There was no evident reason for Kerle’s car to be driving on the wrong side of the road in the moments leading up to the collision.
3. No dead animals, skid marks or the like consistent with avoiding an obstacle, heavy braking or hard swerving were found.
4. Kerle was an experienced driver who was familiar with the roads he was travelling on and would have likely been able to successfully manage any dead carcasses on the road (therefore this was an unlikely cause of the accident).
5. Other potential causes such as speeding were inherently unlikely.
6. The accident occurred at a slight bend in the road, which was entirely consistent with a fatigued driver failing to take the bend safely.
For these reasons, causation was established.
With liability having been established against the three defendants, the question arose as to whether Kerle himself was partly responsible for the accident. The Defendants submitted among other things that Kerle had been contributorily negligent for failing to follow instructions and training, embarking on the journey knowing he had enjoyed no rest for a long time, failing to stop and refresh himself, failing to take adequate rest breaks and courting obvious risks.
McMeekin J held that Kerle had not been contributorily negligent for the following reasons.
1. A study which showed that 81% of mine workers drove alone in their cars after work.
2. Due to the expert evidence of Professor Rogers concerning the inability of people who are fatigued realising that they are impaired, it could not be found that Kerle knew at the time that he was fatigued.
3. Kerle’s experience that he had been able to drive for such long periods before.
McMeekin J accepted BMA’s argument that HMP could not seek contribution from BMA as a result of Clause 27 of the services agreement. McMeekin J apportioned liability between them as only 10% for BMA and 90% to HMP.
McMeekin J rejected the employer Axial’s claim that HMP was the employer pro hac vice (“for or on this occasion only”) of Kerle. Between HMP and Axial, McMeekin J apportioned liability 60/40 against HMP.
This case was a huge win for Kerle, as he had sustained significant injuries, and damages had been agreed at a gross amount of $1,250,000.
This case shows that employers don’t just have to look out for the safety of their workers during the course of their employment. In this case, the Plaintiff had finished work, was going home and was no longer under the direction or control of any of the defendants. Because the fatigue had been primarily caused at work, the employer, the host employer and the mine operator were all held to be liable for the accident.
This case also demonstrates that the duty of care owed by employers requires them to be proactive. In this case, there was a requirement to guard against the risks of fatigue at the completion of a worker’s roster, and the Defendants failed to do enough to mitigate such risks.Posted on