Kerle v MB Alliance Coal Operations Pty Limited & Ors [2016] QSC 304

The decision of McMeekin J is of seminal importance to practitioners who undertake work-related claims where the common matrix of a principal contractor, labour hire provider and host employer exists, especially for an injury that arises in circumstances that is off-site or novel.

Central to the claim was whether the various parties owed a duty of care to the plaintiff in relation to the fatigue in circumstances where the injury occurred some hours after his shift had ended and the plaintiff had been driving home for about 3.5 hours having stopped for a break before the injury.

The facts are unremarkable and the issues clearly distilled and summarised by his Honour:

[1] McMeekin J: At about 6.30 on the morning of 30 October 2008 Mr Harold Kerle commenced his drive home from work. He was employed as a dump truck operator at the Norwich Park Mine. The mine is located near Dysart in Central Queensland. His home was at Monto, 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 an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. His vehicle then collided with a concrete wall at the far end of the bridge. Mr Kerle suffered injury, most significantly a brain injury.

[2] Mr Kerle seeks damages against 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”). He claims that they each breached duties owed to him in various ways and thereby caused his injuries.

[3] The theory underlying the claim is that the accident came about because Mr Kerle was fatigued as a result of working night shifts in the four nights leading up to the morning of the accident.

[4] Each of the defendants denies liability. The occurrence of the accident is not in dispute, nor the fact of injury. Damages have been agreed at a gross[1] amount of $1,250,000.

Assessment of Mr Kerle

[5] While it is evident that Mr Kerle was honest there is a real question mark over his reliability. He suffered a significant brain injury in the subject accident. He was shown to have a very poor recollection of the events of the day he started his four consecutive night shifts. He had no memory of completing the Axial induction although he has signed the necessary form showing that he has done so and there seems no way that the forms could have come to Axial save by him or his wife taking them there. Mrs Kerle says that she did not. Mr Kerle says that he had never been present at Axial’s offices in Gladstone. The probabilities seem to favour Axial’s position. It is difficult to place any great reliance on Mr Kerle’s present memories.

The issues

[6] The issues in dispute and my responses, in bold, are:

(a) Was fatigue a significant contributing cause of the accident? Yes.

(b) If so:

(i) Is the claim governed by the Civil Liability Act 2003 (Qld)? No

(ii) Does the scope and content of the duty owed by Axial and HMP to Mr Kerle extend to taking reasonable steps to protect him long after his employment had ended and hundreds of kilometres from his workplace? Yes

(iii) Is HMP the employer pro hac vice of Mr Kerle? No

(iv) Did BMA owe any duty of care at common law – there being no dispute that Axial and HMP did owe such duties? Yes

(v) Was there a private right of action arising from any statutory obligation owed under the Coal Mine Safety and Health Act 1999 (Qld)? No

(vi) Did any defendant breach any duty of care owed? Yes – each of them

(vii) Was there any causal link between any breach of duty and the injury suffered? Yes

(viii) Was there a break in the chain of causation by reason of Mr Kerle’s decision to continue to drive from the Dingo Roadhouse? No

(ix) Did the breach of the duty owed show a lack of reasonable care for Mr Kerle? Yes

(c) If the foregoing issues are resolved against the defendants, or any one of them, then:

(i) Should there be an apportionment for contributory negligence? No

(ii) What are the respective contributions of each defendant to the harm suffered? BMA vis à vis HMP – 10%/90%; HMP vis à vis Axial -60%/40%

Fatigue

His Honour found fatigue caused the plaintiff’s vehicle to be involved in the collision in the absence of evidence to the contrary and the available inferences which could be relied upon by reference to the test by Dixon CJ in Jones v Dunkel[2] and Kiefel J in Tabet v Gett[3].

The inferences available – there were no other immediate causes for the collision, the plaintiff had finished his fourth consecutive 12 hour night shift, that the period of being awake was not less than 17 hours and perhaps up to 19 hours. The period of having to be awake was extenuated by a 5 hours drive to and from work.

McMeekin J concluded:

[38] To adapt the words of Kiefel J [20] that I earlier quoted, I am comfortably satisfied that “according to the course of common experience, the more probable inference appearing from the evidence is that [fatigue] caused the injury or harm.”

Civil Liability Act (CLA) excluded

His Honour noted that nothing turned on the facts by reference to whether the risk was not “far-fetched or fanciful” (Wyong Shire Council v Shirt[21]) or “not insignificant” (s 9(1)(b) CLA). Nevertheless, his Honour considered s 5 of the CLA and ss 34 and 35 of Workers Compensation & Rehabilitation Act 2003 (Qld) (“WCRA”). His Honour preferred the broader interpretation by reference to the definition of injury in s.32 of the WCRA and the reasoning of Keane JA (as his Honour then was) in Newberry v Suncorp Metway Insurance Limited [25] and found:

[49] Here the claim, as is evident from the Statement of Claim, satisfies that test – it is “one where the employment and its significant contribution to the occurrence of the injury can be seen to be a material ingredient of the claim made against that person.” As the reasoning in Newberry makes clear the eventual factual findings are not the relevant consideration in this determination but the facts pleaded. [27]

No private right of action

It was not contentious that all the parties were subject to the Coal Mining Safety and Health Act 1999 (Qld) (“CMSHA”) and the Coal Mining Safety and Health Regulation 2001 (Qld) (“the Regulations”).

His Honour noted that the legislation is concerned with hazards on the mine and not those off the mine. Nevertheless, his Honour considered (if that was wrong) whether the legislation extended to the plaintiff driving home, noting that no decision as to the application of this legislation for a private action had been drawn to his attention.

Applying the general principles by Dixon J in O’Connor v S P Bray Ltd [31] and conflicting authorities: Schiliro v Peppercorn Childcare Centres Pty Ltd [32]; O’Brien v TF Woollam & Son Pty Ltd [33]Percy v Central Control Financial Services Pty Ltd [34]Townsend v BBC Hardware [35]; Heil v Suncoast Fitness [36]Henderson v Dalrymple Bay Coal Terminal [37] and his Honour’s own decision of Wilkinson v BP Australia Pty Ltd [38], his Honour concluded against a private right of action:

[74] Guided to the extent that I can be by those authorities the relevant features here seem to me to be against the imposition of such a private right for the following reasons:

(a) The obligations imposed are not prescriptive but general;

(b) The methodology of the working out of the necessary fitness provisions by the site senior executive in consultation with a cross-section of workers at the mine is not suggestive of a prescriptive duty;

(c) The obligations are not restricted to employees alone, although they include employees. They extend to the world at large;

(d) If the statute has the scope contended for then it extends to risks to the health and safety of persons off the mine site and long after their work there has been completed. The width of such an obligation counts against it giving rise to a private right of action.

Risk of injury

McMeekin J had no difficulty in finding that the risk of fatigue from the requirement to work four consecutive 12 hour shifts, together with long distance driving on rural roads, which had an incidence of being 13.5 times higher than urban roads for fatigue related crashes, was a relevant risk. As to whether it was obvious to the plaintiff and something of common sense, his Honour was persuaded by various reports and the experts that the nature of fatigue was such that the plaintiff was not necessarily able to recognise he was fatigued and it impacted the plaintiff’s ability to make risk assessments, which made the person vulnerable. A feature of relevant to duty of care.

Duty as against Axial and HMP

The duty had to be assessed against each of the parties in the context of the common law (the CLA having been excluded) on the basis of an employer or like person. The duty was by reference to an omission, which the common law is reluctant to impose, save when accepted categories of relationships between the parties exist and where the party has created the risk per Heydon JA in Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [57], after referring to Pyrenees Shire Council v Day [56].

McMeekin J went through a long of authorities as to the non-delegable nature of the duty, incremental advances and consideration in particular of whether the injury was caused by the incident of employment, despite being away from the work site.

His Honour concluded the creation of the risk which was an incident of the employment was essential:

[107] However, here Mr Kerle was not on the highway in his character as servant. His employer was not exercising any control over him as his employer. Nor was HMP. Some additional factor must be relied on here for Mr Kerle to succeed in his submission.

[108] In my view what distinguishes this case from those that Kitto J had in mind in ACI Metal Stamping & Spinning,[77] and attracts the duty here, is the interaction of the following four factors.

[109] The first is that it is the employer, and those like HMP, who have created the risk by the insistence on consecutive 12 hour night shifts with its consequent, and inevitable, fatigue. The risk thus emanates from the work activities. 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.

[110] The second is the matter previously mentioned – that expert studies on the impact of fatigue have long shown that the worker’s subjective experience of fatigue is not necessarily a reliable guide to the individual’s capacity to function safely. In other words the worker might think that they are fine but they are not. The worker is relevantly vulnerable.

[111] The third is that the workforce must perforce come from places remote from the mine site – long distance commuting was inevitable. In a survey conducted in March 2008 nearly one-half of those who responded travelled more than three hours to get to the Norwich Park mine site.[78] As noted above the worker is responding to the demands of his employment.

[112] The fourth is that the only practicable way of minimising the risks thereby created required a response from persons in control of the workplace and work systems. To adopt the phrase used by Heydon JA that I have quoted, I am satisfied to “‘a high degree of certainty that harm will follow from lack of action” [79] from the defendants.

[113] I am satisfied that the duty I have identified was owed by both the employer and HMP whose relationship to Mr Kerle was analogous to that of the actual employer.[80] The duty was personal and non-delegable. I note that my decision on that last point is consistent with that of Mason P in TNT Australia Pty Ltd v Christie.[81] Mason P determined that the host employer there owed a non-delegable duty of care to the worker injured through defective plant.[82] Foster AJA agreed.[83] In my view the relevant reasoning is applicable here.[84]

[114] As each defendant stressed they are not in a position, and cannot reasonably have been expected, to control the risks inherent in highway travel. The duty cannot extend so far. But that cannot mean that no duty is owed in circumstances where the risk emanates from the workplace, the risk was created for the profit of the defendants, and significant means to minimise the risk lies in the workplace practices and facilities. Those means fall within the areas traditionally controlled by employers and those in analogous positions – the education of workers concerning risks of injury inherent in what they are called on to do, the control of shift lengths, the use of the premises (here to enable workers to rest), and the provision of transport to and from the mine site.

HMP is not the employer of Mr Kerle pro hac vice

McMeekin J dismissed the decisions of Barrett v Drake Personnel Limited [85] and Deutz Australia Pty Ltd v Skilled Engineering Ltd [86] as being authority that the labour hirer Axial had discharged their heavy burden. His Honour found that there were not “exceptional circumstances” that the “entire and absolute control over the workman had passed to [HMP][87] so as make HMP the pro hac vice employer. His Honour relied on TNT Australia Pty Ltd v Christie [88].

BMA’s duty of care

Unlike Axial or HMP, BMA was not the employer or analogous employer of the plaintiff. BMA operated the mine site and had entered into a contract with HMP for the purpose of carrying out certain works associated with removing the overburden in order to extract the coal. In issue was whether the duty of BMA was limited to co-ordinating the activities amongst the independent contractors and no more: Leighton Contractors Pty Ltd v Fox [94] and Stevens v Brodribb Sawmilling Co Pty Ltd [95]. Ancillary to this was whether the contract discharged BMA’s duty to the plaintiff: Voli v Inglewood Shire Council [120] cf: Crimmins v Stevedoring Industry Finance Committee [121].

McMeekin J was not persuaded that the duty was so limited and found a duty to was owed and could not be discharged to a stranger to the contract. After considering a plethora of decisions his Honour considered the key element was BMA created the risk and was in a position to control the risk. Normally, this may be able to be delegated to a skilled contractor, rather in this instance the risk did not arise from an aspect of work within HMP’s expertise, but the insistence of BMA on consecutive 12 hour shifts:

[137] Nonetheless reference to these various decisions does not determine the issue of whether a duty is owed in this novel situation. If the duty is owed here, as Mr Kerle contends it is, then it must be on a basis not previously adopted in the authorities dealing with the duty of care owed by principals to employees of independent contractors. As Beasley JA observed in Bostik Australia Pty Ltd v Liddiard:[108]

“There comes a point where reference to the multitude of decided cases ceases to provide assistance in the determination of the question in issue and it is necessary to return to principle. As Gummow and Hayne JJ observed, at [145], in Graham Barclay Oysters Pty Ltd v Ryan, the “totality of the relationship between the parties … is the proper basis upon which a duty of care may be recognised.”

[138] To like effect is the judgment of Allsop P (as his Honour then was) in Caltex Refineries (Qld) Pty Ltd v Stavar [109] where his Honour held that the “proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.” [110] His Honour then listed 17 such salient features. In my view the salient features here justify the imposition of the duty contended for.

[139] The first and most important point is that BMA brought the risk into being by its insistence on the consecutive 12 hour night shifts.[111] The risk is that of personal injury, even death, from driving long distances home after work because of significant fatigue brought on by working consecutive night shifts.

[140] The second special feature is in the nature of the risk. One of the peculiarities of this case is that the injury occurred far from the workplace and long after the work shift came to an end. Because of that neither Axial nor HMP was in a position to command Mr Kerle as to what he must do at the point in time when the accident occurred or for a long time before. Neither of course was BMA. But given this peculiarity BMA should have appreciated that the risk of personal injury or death from commuting after leaving the workplace was not in the nature of the typical risk that employers deal with vis-á-vis their employees.

[141] Allied to that feature is that this is not a case where it could be said that the management of the risks created by the insistence on 12 hour night shifts fits comfortably within the skills or expertise of HMP or Axial. Axial was not employed because it had special expertise in handling fatigue management issues. Nor was HMP. While these independent contractors may have been engaged because of special skills to perform the work of removing overburden or finding staff, the risks here fall outside any supposed area of expertise and so neither could be expected merely by reason of that presumed expertise to manage the risks thereby created competently.

[142] The third feature is the degree of control exercised by BMA. It is of significance that of the various measures advanced as minimising the risk one was under the complete control of BMA – the length and timing of the shift. HMP was contractually bound to have the workers work a 12 hour night shift. Mr Kerle had no power to vary that condition of his employment. As well BMA controlled the premises and at least the basics of the induction process required. In short, BMA controlled not only the work shifts, but HMP and Axial through the contract it put in place. Because of this control there is a strong argument that it was in a better position than either to manage the risk in question.

[143] The fourth feature is that BMA had organised things so that machinery operators were employed by someone else to do their work. BMA could well have employed people such as Mr Kerle itself. That was a material factor in Mason J’s formulation of the duty owed by a principal to employees of independent contractors in Stevens. As the Court (Allsop ACJ, Beazley JA, Giles JA) observed in Pacific Steel Constructions Pty Ltd v Barahona [112] there are legal and practical advantages to principals in so arranging for activities to be carried out. BMA is entitled to so organise its affairs. But in so far as the duties that might be owed are concerned the situation is markedly different to that which pertains when an independent contractor is engaged to carry out work within the contractor’s area of expertise such as the steelworkers in Pacific Steel, or the concrete pumping contractors in Leighton Contractors.

[144] The fifth feature is that the actual employer, Axial, did not appear to have a very sophisticated approach to issues of workplace safety generally, let alone to issues presently under consideration…

[147] The sixth feature is that workers such as Mr Kerle were relevantly vulnerable. Without access to the expert knowledge of people such as Professors Rogers and Dawson they could not be expected to appreciate the full extent of the risk that they ran in commuting home – particularly the insidious onset of unappreciated fatigue – nor meet that risk without assistance.

[148] I mentioned the judgement of Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [116] where his Honour listed 17 “salient features … affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury”. His Honour’s list is not meant to be exclusive of other factors but it is sufficiently comprehensive for my purposes. Bearing in mind the six factors I have identified and applying those considerations to his Honour’s list is instructive. I will consider each of those factors in turn so far as they are relevant (the feature being in bold and my response following):

(a) the foreseeability of harm – the risk of harm from fatigue in commuting to distant home bases was an act foreseen by BMA and well before the material time;

(b) the nature of the harm alleged – here personal injury and potentially death;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm – BMA had complete control over the mine site and length, timing and frequency of shifts worked and a statutory duty to exercise that control;

(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself – it was recognised that employees such as the plaintiff may not appreciate the effects of fatigue. Further, measures adequate to meet the risk were within the control of BMA, not the plaintiff;

(e) the degree of reliance by the plaintiff upon the defendant – the plaintiff had no option but to rely on those in control of the mine site. Whether he appreciated that entity was BMA is not shown;

(f) any assumption of responsibility by the defendant – see (c) above. While BMA had responsibility over the mine site it had contracted with HMP for HMP to put in place measures to meet the perceived risk. BMA retained the power to audit HMP’s performance;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant – Mr Kerle was relevantly proximate. He was a worker on the mine site brought there at BMA’s request and to perform work to the profit of BMA;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff – Mr Kerle was a member of a class that BMA should clearly have had in contemplation as being potentially affected by the risks created by insisting on the performance of four consecutive 12 hour night shifts;

(i) the nature of the activity undertaken by the defendant – probably not relevant here in the sense intended. Mr Kerle was not injured directly by some activity undertaken by BMA. Assuming causation, his injury was sustained as a result of the fatigue brought about by his involvement in those activities which were connected directly with BMA’s mining operations;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant – see (b) above;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff – see (a) above;

(l) any potential indeterminacy of liability – not relevant here. Liability is argued to apply in respect of personal injury suffered by those brought to the mine site as workers not in respect of some undefined form of harm or caused to the world at large;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff – while the subject of dispute the case advanced by Mr Kerle was that better education regarding the risks, the provision of alternative means of transport home, and making known the provision of facilities to rest before travelling all would have obviated the risk. Each was within the power of BMA to bring about. No evidence was led that considerations of expense and inconvenience were relevant;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests – looked at from BMA’s perspective an imposition of the proposed duty of care on BMA will have no impact on its right to pursue its own interests;

(o) the existence of conflicting duties arising from other principles of law or statute – not relevant as a disqualifying factor and see (p);

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty – a fact in favour of the imposition of the suggested duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law – perhaps not of great significance, but see the passage from Brennan J’s judgment in Stevens v Brodribb Sawmilling Co Pty Ltd [117] set out above.

[149] In summary every factor save one favours the imposition of a duty of care or is neutral. That one is at para (f) above and it is that issue BMA principally relies on. The task of course is not a mechanistic one. Full weight needs to be given to those factors that are neutral or against the imposition of the duty. Essentially BMA’s response is two-fold.[118] First, its contract with HMP prevents any duty to HMP’s workers arising. It expected HMP to protect its own workers and had no reason to think it wouldn’t or couldn’t. Secondly, the workers knew what they were doing and were paid accordingly.

[150] The second point is met by the factors in paras (c), (d) and (e) above. The plea is essentially that Mr Kerle voluntarily assumed the risk. Equality of both knowledge of the risk and of the ability to meet the risk might well be a complete answer but that is not this case. Mr Kerle was at a significant disadvantage in relation to both his knowledge of the risk and his ability to meet it.

[151] As to the first point, where, as here, it is BMA who has created the risk, and it is for its profit that the risk is incurred, does entry into a contract with HMP whereby HMP is to manage that risk mean that no duty of care is owed to persons affected by the risk? I think that the short answer is that entry into a contract cannot operate to discharge BMA from a duty of care to persons who are strangers to that contract: Voli v Inglewood Shire Council.[119] The issue is whether a duty was antecedently owed.

[152] As Windeyer J observed of the architect in Voli a duty was cast upon him by law not because he made a contract but because he entered upon the work. That is, it was the architect who created the risk that resulted in injury to the entrant, and it was his action in creating the risk that exposed him to a tortious a duty of care. So here. BMA created the risk by its insistence on consecutive 12 hour night shifts.

[153] In my view, engagement of HMP, and reasons to think it is performing its functions under the contract (if that was so), may satisfy a duty of care (more of that later) but it cannot prevent it arising.

[154] The argument was put that no duty of care was owed as it was not shown that HMP was not competent, and that BMA had no notice of any inadequacy in HMP’s systems of work and fatigue risk management. But that is to put the cart before the horse. In other words BMA asserts that it is for the claimant to show that HMP was in some way an unsatisfactory choice as the organiser and manager of the workforce before a duty of care to its, HMP’s, workers can arise. That may be a complete answer to the breach issue but not to the antecedent question of whether a duty of care was prospectively owed by BMA to workers brought to BMA’s site to work for its ultimate profit under work systems that it had put in place, where it was BMA who controlled the workplace.

[155] BMA stressed that it was a service recipient, not provider, and argued that fact was a material one. Reference was made to Voli v Inglewood Shire Council.[120] The case is not authority for the proposition advanced. The Court did not hold that the Council, the service recipient, owed no duty of care to the person injured when its hall collapsed because it had a contract with its service provider, the architect. To the contrary, despite that contract the Council was held liable and equally so with the negligent architect.

[156] The facts here are much more analogous to those in Crimmins v Stevedoring Industry Finance Committee.[121] It was there held that the Australian Stevedoring Industry Authority had or should have had knowledge of the special risks to which the workers were subject and could control (or at least minimise) those risks by the exercise of its statutory powers, albeit they were employed by independent stevedores. It was the Authority that put the workers at risk of harm because it was the Authority that assigned the workers to particular stevedores. The Authority was held to control the source of the risk of harm to the workers. It followed that the Authority owed a waterside worker a common law duty to take reasonable care to protect him from reasonably foreseeable risks of injury arising from his employment by registered stevedores.

[157] While this is not a case concerned with the exercise of statutory power it is about controlling the source of the risk of harm. And it is BMA’s involvement in both the creation of the risk and its control that is at the heart of the case brought against it. BMA complains that the plaintiff effectively equates its position to that of HMP. That is true. Normally the complaint would be a good one. An occupier of a site who brings onto the site a contractor skilled in performing work can normally expect to be allowed to let the contractor to protect its own workers. The peculiarity here is that the risk does not arise out of some aspect of the work within HMP’s expertise. It is BMA who creates the risk, and it is BMA who is arguably in the best position to control it. That also provides an answer to BMA’s submission that if BMA had to guard against this risk it had to guard HMP’s employees and contractors against all risks emanating from the work. That is not so. Some risks, probably most, were inherently those HMP would be expected to control and manage.

[158] In his judgment in Caltex Refineries (Qld) Pty Ltd v Stavar [122] Allsop P went on:

“There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.

The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.”

[159] To the extent the decision involves “an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof” I am satisfied that it is appropriate to impute legal responsibility to BMA to take reasonable care to manage the risk created by its insistence on the consecutive 12 hour night shifts.

Personal and Non-Delegable by BMA

Having found that BMA created and controlled the risk, it did not take much to find that the duty was non-delegable. McMeekin J found BMA created an unsafe system and it required HMP to implement it, whom BMA controlled. It was not contentious that HMP owed a non-delegable duty to the plaintiff, and accordingly, his Honour found with such prerequisites that BMA should also bear the consequence of the extended non-delegable duty: Kondis v State Transport Authority [123]

Autonomy of the plaintiff

McMeekin J was not satisfied with the argument of BMA that the injury occurred because of the autonomous actions of the plaintiff to drive home because of the nature of the risk.

Breach of duty

While foreseeability was not in issue, his Honour touched on the numerous studies and findings in mining activities and noted the controlling minds should have familiarised themselves with the relevant safety issues about fatigue: Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [144]Thompson v Smiths Ship Repairers (North Shields) Ltd [145]; Baker v Quantum Clothing Group Ltd [146]; and BHP Billiton Ltd v Parker [147].

His Honour also noted the various contractual documents and policies of the defendants considered to various degrees the risks and dangers of fatigue.

Accordingly, it was not in issue that it was foreseeable. In issue was the response to the foreseeable risk and whether it was reasonable.

The plaintiff submitted four ways (not in isolation), which were reasonably practicable means of obviating or minimising the risk:

(1) have in place proper limits on the length of shifts so that for workers such as Mr Kerle the total time from place of last rest to the worker’s next place of rest did not exceed 15 hours;

(2) provide a bus service to transport workers at the end of a roster to major centres such as Rockhampton and Mackay with stops along the way;

(3) provide a place for Mr Kerle to rest after the shift;

(4) provide a program of education for workers about fatigue and its risks such that they could adequately identify when it was safe to drive and when it was necessary to undertake rest before doing so, and more particularly what the nature of the risk was that they were exposed to and what were the necessary means to manage the risk, given its potentially insidious nature.

McMeekin J considered each by reference to the familiar authority of Wyong Shire Council v Shirt [158]. The first was the most controversial. The second was implemented after the plaintiff’s injury and the third and fourth were in dispute, as to whether they were in fact done.

The Length of Shift

While conceptually the notion that shifts could be reduced to minimise fatigue was accepted, the opposition stemmed from its practicability and effectiveness. McMeekin cited with approval the employer’s obligation to enforce a system of work and saw no difference between the defendants in this respect. Nevertheless, and crucial in McMeekin J’s acceptance of the measure was the failure of the defendants to adduced evidence as to the cost or other burden as to why it was not practical. Pivotally, his Honour drew an adverse inference from the “dearth of evidence” adduced by the defendants: Jones v Dunkel [188]. His Honour also considered that the evidential burden had shifted to the defendants to prove it was not practical – McLean v Tedman [183]:

“It is said, nevertheless, that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury. We would reject the suggestion that the appellant [ie the injured worker] bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our view once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles [ie the employer] to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees on the ground that the increase in the time taken to do the work would have damaged the men’s prospects of taking a second job.” [184]

McMeekin J found the defendants were not only in the best position to provide evidence about why the proposed measures were not practical, but had exclusive evidence access to such evidence, but did not adduce it.

Bus Service

His Honour found while not determinative of the issue, the provision of a bus service after the injury was probative in value: Nelson v John Lysaght (Australia) Ltd [198] per Gibbs J, Stephen and Mason JJ agreeing.

Again, there was a failure by the defendants to adduce evidence to the contrary or to prove that the circumstances had changed. His Honour was satisfied by reference to the experts and reports of the experts, together with an internal survey undertaken by HMP of workers, that it would reduce the risk.

His Honour found that while a person on a bus may still be awake if no sleep is obtained, it is far less tiring than three hours of driving. As to cost, in absence of evidence to the contrary, McMeekin J was satisfied it was practical provision.

Room available

The issue of the availability of a room to rest in came down to not so much as to whether there was a room, but whether its availability was effectively communicated. McMeekin J found the evidence of Ms Greenshill an administration officer at HMP to be misleading and that the plaintiff would not have believed he could sleep in his room for whatever period he thought appropriate or that he had exclusive use of it.

Education

The plaintiff’s submission was he “was plainly not adequately educated as to the warning signs of fatigue such as to recognise that he was not in a position to safely drive home on the morning in question or to otherwise seek to manage the high risk of a fatigue related accident to which he was plainly exposed.” [226]. McMeekin J accepted this.

The issue was not, did each defendant alert workers to the risks of fatigue, but whether it was adequate.

McMeekin J relied on four elements of training:

(a) 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;

(b) 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 [228] and importantly that there existed a risk of falling asleep involuntarily;

(c) The warning signs of the onset of fatigue;

(d) The ways to meet those risks including the control measures available onsite. [229]

His Honour noted that while BMA’s requirement for 12 hour consecutive shifts included detailed considerations of fatigue in the contract with HMP, the training and education either individually or collectively to the plaintiff, fell short of the above requirements. McMeekin J identified the shortcomings in the training and was not persuaded that the policies, induction or training by HMP and Axial made any attempt to provide detailed knowledge of the true level of risk involved in fatigue or the risk of long distance commuting after working consecutive night shifts. His Honour was not satisfied that the plaintiff “had learnt anything of substance”.

Causation

The issues centred on:

(a) the likelihood of the plaintiff adopting the measure; or

(b) the likelihood of the measure avoiding the fatigue caused accident.

The authorities relied upon: Queensland Corrective Services Commission v Gallagher [269] per de Jersey CJ citing Vozza v Tooth & Co Ltd [270]; Turner v South Australia [271] per Gibbs CJ. In that latter case Gibbs CJ said:

“When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd.”[272]

His Honour considered the four measures (reduced shift, bus, place to sleep and education) and found with ease that each measure favoured a reduction in the risk and that the plaintiff, along with other workers would have adopted the measures.

Reasonable Care

BMA

While BMA’s contractual documentation with HMP was detailed and covered fatigue extensively, McMeekin J was critical of its selection of HMP as a competent contractor in respect of the risk identified. As before, there was no evidence led about the basis for determining that HMP had the necessary expertise or systems to meet the risks inherent (fatigue) in the work. Accordingly, while McMeekin J found it did not employ a competent contractor and had breached its duty.

HMP

Having found HMP had the actual control of the plaintiff and ability to implement preventative measures such as the bus, rooms and education, and that the response was unreasonable because there was no evidence to justify ignoring them by reference to cost, practicability or conflicting responsibilities, it was a short step to conclude that they breached their duty of care.

Axial

The trickle effect of the above breaches and that Axial owed a non-delegable duty sealed its fate. The requirement of 12 hour consecutive shifts putting Axial on notice as to the risk and the reliance on HMP, who were found to have breached their duty, put to pay the defence that it was unreasonable for a small labour hire company based in Gladstone to do anything more than rely on HMP.

McMeekin J relied on the observations of Mason P in TNT Australia Pty Ltd v Christie:[302]

“In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.”

“… in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff’s injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care.”[303]

Break in the chain of causation

The issues came down to a statement in Ms Coles report as to the purchase of No-Doz and the continued driving after the plaintiff’s stop at the rest in Dingo.

The first defendant relied on a statement on the report of Ms Helen Coles which imputed that the plaintiff had purchased No-Doz at a stop in Dingo before the collision. Ultimately, McMeekin J found there was no evidence as to the purchase and that for the statement to be admitted under s 18 of the Evidence Act 1977 (Qld) would require a “double hearsay”.

His Honour was not persuaded to give weight to the statement in Ms Coles report.

As to the continued driving, his Honour found that the negligent act of driving was caused or contributed by the defendants failing to educate the defendant on the nature and extent of the risks of fatigue, and accordingly, found causation was not broken.

Contributory negligence

McMeekin J referred to the authorities in Podrebersek v Australia Iron and Steel Pty Ltd [324] and Green v Hanson Construction Tools Pty Ltd [325] by reference to s 10(1)(b) of the Law Reform Act 1995 (Qld). His Honour did not consider there to be any difference in principle to the assessment required under s 307 of the WCRA: cf. Kemp Meats Pty Ltd v Tompkins [327] per Holmes JA, as her Honour then was.

The initial issues were whether the plaintiff:

(a) failed to follow instruction not to operate a vehicle when fatigued;

(b) failed to adhere to the fatigue management induction and training received from BMA and/or HMP and to act accordingly.

McMeekin J unsurprisingly found that no relevant instruction had been provided having regard to previous findings as to the inadequacy of instruction. His Honour rejected any reliance on the statement in the induction “You need to be aware too of your responsibility not to drive to and from your place of work while fatigued[328] as being sufficient.

As to the further allegations of contributory negligence based on driving while fatigued, because the plaintiff knew he had completed four 12 hour consecutive shifts with a long drive home, McMeekin J found it was common practice at the mine and the defendants had failed to provide an alternative.

Insofar as driving with indicia of being fatigued or ought to have known, McMeekin J noted that there was no evidence in support that the plaintiff drove knowing the warning signs. His Honour preferred the evidence of Professor Roger’s as to the ability to understand the warning signs and concluded:

[441] Not without some hesitation I have come to the view that there should not be an apportionment. What I think is involved here is some misjudgement by Mr Kerle of his growing weariness. In Bankstown Foundry Pty Ltd v Braistina [342] Mason, Wilson and Dawson JJ explained the relevant approach:

“But [the worker’s] conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.”

[442] Mr Kerle did not have the advantage of the education and training that would have better equipped him to appreciate the hazard. Professor Roger’s point above is that in making this misjudgement Mr Kerle was not functioning or capable of functioning as he normally would. While the test is objective it must bring into account such subjective features that impact on the issue. Finally a finding as to what symptoms were experienced borders on speculation concerning the symptoms experienced.[343]

Indemnity or contribution between the tortfeasors

McMeekin J considered sections 6 and 7 of the Law Reform Act 1995 (Qld) as they were relevant to each tortfeasor and their contractual relationships.

HMP v BMA

The first issue was whether the contractual provision caught the injury because it was not caused by a positive act and off site.

The relevant provision:

“27.1 The Contractor [ie HMP] will be liable for, and will indemnify the Principal [ie BMA] and keep the Principal indemnified from and against any liability and/or any loss or damage of any kind whatsoever, arising directly or indirectly from:

(a) any breach of any warranty or any of the terms or conditions of this Agreement by the Contractor;

(b) the illness, injury or death of any of the Contractor’s employees, agents, contractors, and/or sub-contractors arising out of or in connection with this Agreement;

(c) any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by:

(i) the performance of the Services by the Contractor; and/or

(j) the entry onto, and the activities undertaken on and in, the Site by the Contractor and/or its employees, agents, contractors and/or sub-contractors

(d) any negligence or wilful act or omission by the contractor and/or any of its employees, agents, contractors and/or sub-contractors in connection with this Agreement.

except to the extent that any liability, loss or damage is directly caused by the Principal’s wilful misconduct or Gross Negligence or that of its employees, agents, contractors and sub-contractors (other than the Contractor.”

McMeekin J found:

[454] In my view the natural construction of the relevant clause is that the phrase “directly or indirectly” qualifies the connection between the loss or damage that BMA is exposed to and for which it seeks the indemnity and the “the illness, injury or death of any of the Contractor’s employees, agents, contractors, and/or sub-contractors” or the “personal injury, illness or death to any person” mentioned in sub paragraphs (b) and (c). It is the the personal injury referred to in each case that must satisfy the condition of “arising out of or in connection with this Agreement” in (b) or be “caused or contributed to by the performance of the Services by the Contractor” in (c).

[455] There is no doubt at all that the loss or damage that BMA is exposed to and for which it seeks the indemnity arises directly from the injury of one of the Contractor’s “employees, agents, contractors, and/or sub-contractors”. Nor is there any doubt that that personal injury satisfies the condition of “arising out of or in connection with this Agreement” or was “caused or contributed to by the performance of the Services by the Contractor.” I have concluded that Mr Kerle experienced a level of fatigue which caused the subject accident and that the fatigue resulted, at least in part, from working for four consecutive night shifts operating machinery removing overburden.

[456] In my opinion the indemnity applies and HMP is precluded by the contract from seeking contribution from BMA.

BMA’s contribution from HMP

McMeekin J applied McPherson JA in Kim v Cole [347] in that the contractual terms governed the causative breach and found that:

[462] I have earlier set out the relevant contractual terms. Clauses 5.1 and 5.3 of the Services Agreement are relevant here. The standard that HMP was to meet was not less than that contained in the BMA Hours of Work Standard and Annexure J. HMP failed to comply with its contractual obligations. Had HMP done so the subject accident and Mr Kerle’s injuries would in all probability have been avoided.

[463] In my view there is little merit in HMP’s submission that BMA could have avoided the consequences of HMP’s own default by more assiduous auditing. While true it does not sit well in the mouth of the contract breaker to say to the other party that you should have been more astute in realising our default.

[464] I agree with BMA’s submissions. As between the two parties I apportion 90% to HMP.

HMP v Axial

Axial contended they took reasonable care and that HMP was the de facto employer and that they had little or no control. McMeekin J rejected the submissions because:

  • the risk of placing the plaintiff with HMP brought with it an inherent risk;
  • if it had been on site it would have discovered that the plaintiff and others immediately left the site after their shift;
  • the duty of care is not delayed until they get around to considering it;
  • the induction was uninformative and misleading;
  • if they had been aware of the inductions performed by HMA and BMA then they would have been aware the risk was barely touched on;
  • while they may have been aware of accommodation on site they did tell the plaintiff of his entitlements;
  • they were presumably aware that no steps were taken by HMP to shorten shifts or provide a bus service.

McMeekin J accepted that HMP had the greater ability to provide its own induction, implement a bus service or vary the shift length. Axial also had the benefit of the terms of the contract in relation to HMP’s responsibilities.

As between HMP and Axial, his Honour apportioned 60/40 against HMP.

The orders were:

  1. On or before 5pm on 23 January 2017 the parties should confer in an endeavour to agree on the appropriate orders to give effect to the relevant findings and conclusions in these reasons including orders as to costs;
  2. In the event that the parties reach agreement in relation to the orders to give effect to these reasons, short minutes of those orders are to be provided to the Associate to McMeekin J by 9am on 30 January 2017;
  3. In the event that the parties are unable to agree in relation to the orders to give effect to these reasons, the proceedings are adjourned to 10am on 30 January 2017.

David Cormack – Brisbane Barrister & Mediator

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