A truck driver, who was seriously injured in a single motor vehicle accident while driving home from work after four consecutive night shifts, has successfully sued his employers, with the Supreme Court of Queensland finding the employers negligent and awarding damages in excess of $1.2m.
At approximately 6.30 am on 30 October 2008, Mr Harrold Kerle commenced his drive home from work. He was employed as a dump truck operator at the Norwich Park Mine and had just completed four consecutive 12-hour night shifts, with the last shift finishing at 6 am. His home was at Monto, about 430 km away and the duration of the drive from the mine to his home was approximately five hours. At approximately 10 am and 300 km into his journey home, his motor vehicle collided with an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway, hitting a concrete wall at the far end of the bridge. Mr suffered serious injuries as a result of the accident, including a brain injury.
Mr Kerle commenced proceedings in the Supreme Court of Queensland, in negligence and claimed damages against his employers, 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 alleged that each employer breached its duties owed to him and caused his injuries, and that the accident occurred because he was fatigued as a result of working night shifts in the four nights leading up to the morning of the accident.
The employers each denied liability. They argued that the injury did not occur at the workplace or during the course of a shift, and that the duty of care they owed did not extend to the injury sustained. The employers further argued that Mr Kerle broke the chain of causation as he took a 30-minute break on his journey home, and was contributorily negligent in failing to stop and rest more regularly during his journey home.
His Honour McMeekin J found that the employers established a risk to Mr Kerle by requiring him to work four consecutive 12-hour night shifts, and they owed Mr a duty of care despite his mode of transport being independent to his employment. Mr was driving in response to “the demands of his employment” and long distance commuting was inevitable. The employers should have taken measures to discharge their duty of care, including educating the workers of the risks of injuries associated with their work, shift length control, providing rest areas, as well as transport facilities to and from the site. Further, causation was not broken when Mr made a stop on the journey home; although it was considered an intervening act, it was directly caused by the employers’ breach of duty.
Accordingly, the court upheld Mr Kerle’s claim, with damages agreed at $1,250,000: v BM Alliance Coal Operations Pty Limited & Ors (2016) Aust Torts Reports ¶82-320;  QSC 304.
This article was written by the Wolters Kluwer Torts editors and first appeared in the Australian Tort, Personal Injury, Health & Medical Law Tracker dated 16 February 2017.