According to the Centre for Accident Research and Road Safety Queensland, fatigue contributes to 20% to 30% of all injuries and deaths on the road.1
The true statistics may very well be more significant given, in many instances, fatigue is but one of several factors that may have contributed to the accident. It is not just a public safety issue. It is also a workplace issue.
In 2020-2021, 45% of work-related fatalities were suffered on journeys to and from work.2 These statistics do not reveal the cause of the accident. However, considering the general data referred to above regarding the cause of car accidents, it is reasonable to infer that fatigue may very well be a significant factor contributing to work-related fatalities on journeys to and from work.
This then begs the question – what can be done to try and reduce the risk of such accidents?
An employer’s duty of care extends beyond the bounds of the worksite. It is not the case that, as soon as someone leaves their worksite, the employer can wash their hands of any liability if the worker is injured on the way home.
This is particularly so for those workers who are at increased risk of fatigue because of the nature of their work environment. Usually, this involves workers performing consecutive night shifts and/or working beyond extended hours of work. Shift workers tend to be at higher risk of a fatigue-related accident, particularly on the drive home from a night shift.
A practical demonstration of how a fatigue-related accident can be conclusively attributed to an employer can be found in the decision of Kerle v BM Alliance Coal Operations Pty Ltd and Ors.3
Mr Kerle was injured in a single-vehicle accident while driving home after working at his fourth consecutive 12-hour night shift. The court accepted the worker was exposed to a reasonably foreseeable risk of injury while driving home in those circumstances.
The employer was found to have breached their duty of care owed to Mr Kerle by failing to respond to the risk of a fatigue-related accident by properly training and educating their workers about the dangers of fatigue and how to notice signs of fatigue.
The court considered that an adequate fatigue education program ought to have contained at least four key points in order to respond to the risk of a fatigue-related accident:
- The degree of risk, both in terms of likelihood and magnitude, personal to the employees, particularly those considered to be at high risk which must have included those facing long distance commuting after shift work
- Education about the basic concepts behind fatigue, the need to pay down sleep debt, education, and the total time from last place of rest to the person’s next place of rest should not be greater than 15-16 hours, including commuting and importantly that there existed a risk of falling asleep involuntarily
- The warning signs of the onset of fatigue
- The ways to meet those risks, including the control measures available onsite.4
Ultimately, this decision reflects the accepted legal principle that an employer is unable to discharge its duty of care owed to its employees by simply leaving their employees to their own devices about responding to workplace risks.
Where there is a recognised risk of injury, as there is with shift workers and other workers who are required to work long hours, an employer is obligated to respond to that risk by devising, implementing and enforcing adequate fatigue management protocols to alleviate or minimise the risk of a fatigue-related incident from occurring.
Both Workplace Health and Safety Queensland and Safe Work Australia have each published guides to assist employers with this. See the Workplace Health and Safety Queensland Guide and the Safe Work Australia Guide.
Given the intersection between road accidents and work-related fatigue, it would be hoped that employer adherence to managing the risks of fatigue might go some way to addressing Queensland’s road toll which, in 2022, is on track to be the worst in more than a decade.5
Hugh Powell is a Partner and Sunshine Coast Leader of Travis Schultz & Partners.
2 See Queensland Workers Compensation Scheme Statistics 2020-2021 Pocket Book at page 8.
3  QSC 304.
4 Kerle v BM Alliance Coal Operations Pty Ltd and Ors  QSC 304, 299.
5 couriermail.com.au/truecrimeaustralia/police-courts-qld/queenslands-road-toll-on-course-to-be-worst-in-more-than-a-decade/news-story/b156cd6a30d1db3a57dc127d2a67304b (subscription required).