Most employers are conscious of their health and safety obligations for when employees are at work, but what about employer obligations to employees travelling to and from work?  A recent New South Wales decision highlights the importance of employers taking a holistic approach to fatigue management both within and outside of the workplace.

In Eather v Skillset Limited & Ors [2020] NSWWCC 11 the New South Wales Workers’ Compensation Commission (Commission) recently determined that there was a “real and substantial connection” between a young apprentice’s employment and the fatigue that caused his fatal car accident in November 2015.

The decision is relevant to employers as it illustrates the need to ensure fatigue management processes are appropriately applied and the associated liability for failing to manage workplace fatigue.

What happened?

A 21-year-old worker, Bradley Eather, commenced employment as an apprentice printer in September 2015.  He had previously been unemployed for most of 2015, though he worked part-time in the months immediately preceding the new role.

The role required the apprentice to get up early ahead of a 55km commute to the workplace.  He worked a total 38 hours each week, with no overtime, and evidence was given that he took scheduled breaks.

The work was described by witnesses as varied, with some duties performed being physically tiring.  However, during the week of the incident it was said that the work performed was not strenuous and the young apprentice did not report fatigue or appear to be tired.  From the decision, it appears that Mr Eather did not have any significant risk factors for workplace fatigue.

Mr Eather frequently carpooled with another young apprentice, who lived within 10 minutes of him.  The evidence was that the other worker usually drove.  Initially, they commenced work at 7.00 am, but this later changed to 6.30 am, finishing at 3.00 pm.  The co-worker stated that he was tired at the end of the day, and would doze in the car if Mr Eather was driving.  He also stated that Mr Eather had told him he was tired.

On 10 November 2015, six weeks into his apprenticeship, Mr Eather was driving home with his co-worker when he veered his car into oncoming traffic and collided with a tanker.  Whilst the co-worker survived the accident, unfortunately Mr Eather did not.  The police found that fatigue was a major contributing factor to the collision.

The determination

The issue was whether there was a real and substantial connection between the employment and the incident.  This was important because, like many states, in 2012 New South Wales placed a number of limits on compensation for journey claims.  The intention of the 2012 amendments was to limit compensation where the risk of injury was outside the control of the employer.[1]

The employer and its insurer denied liability as they denied that there was a real and substantial connection between the motor vehicle accident and the apprentice’s employment.

The employer asserted that the apprentice did not look tired or raise any complaint regarding fatigue.  However, it is accepted at law that the employee’s appearance does not provide a good indicator as to whether they are in fact fatigued.[2]  Further, the common law recognises that an employee’s self-assessment as to whether they are fit to drive is unreliable and employers therefore need to have protective measures in place.[3]

Mr Eather’s father raised concerns that the apprentice had been “burning the candle at both ends” due to his daily routine, including a 55km each way trip to and from work, gym sessions, raising a new puppy and picking up his sister from school.  It was submitted that his son’s fatal injuries arose from his employment because he had limited experience in the demands of full-time work, and this affected his cognition.

Interestingly, despite the evidence that the young apprentice worked a regular 38-hour week, with no overtime and regular breaks, and that his additional activities outside of work may have contributed to fatigue, the finding was that the early starts required of Mr Eather were a contributing factor to the fatal incident.  Evidence was led that the apprentice would have only slept for 5.5 to 6.5 hours per night (instead of the recommended 7 to 9 hours), leading to chronic sleep restriction, and that he may have found it difficult to sleep early enough to get a full night’s rest due to circadian rhythms.  Circadian rhythms were also in play at the time of the incident, when sleepiness and fatigue are naturally elevated.

Accordingly, the Commission determined that although there was “little doubt” that other factors contributed to the deceased apprentice’s fatigue, there was a real and substantial connection between the apprentice’s employment and the incident.  It was not necessary for that connection to be the sole, or even the main, cause of the incident.

Lessons for employers

The decision highlights the need for employers to consider sleep patterns as a factor when determining how best to manage workplace fatigue.

In Mr Eather’s case, matters that were in the employer’s knowledge included that the young man had not worked full-time before, had a long commute, and was required to start work early.  Whilst the employer may not have been alert to it, the early start time also meant that Mr Eather was exposed to risk by driving home at a time when sleepiness was increased.

In managing workplace fatigue, employers should consider the following steps:

  • Conducting risk assessments on factors that may cause fatigue (for example, early starts, changes to rosters, repetitive duties, etc.) and eliminating these, or adjusting to suit circadian rhythms, wherever possible.
  • Implementing a fatigue-management policy and procedure which includes information for employees and strategies for limiting the risks of fatigue (including increased break times, updated rosters, modified duties, etc.).
  • Consider and adhere to the relevant specific work health and safety obligations such as the Code of Practice for Children and Young Workers, which highlights risks for young workers (for example, lack of experience in pacing their work).
  • Providing employees with accessible and practical education on risks and fatigue-management processes, including for commuting and activities outside of work.
  • Regularly consulting with employees on their health and wellbeing.

If you require advice or assistance with managing fatigue issues, please contact us.

[1] New South Wales Parliamentary Debates Second Reading speech to the Workers Compensation Legislation Amendment Bill 2012 (NSW) and Safety, Return to Work and Support Board Bill 2012 (NSW), 20 June 2012, 13188.

[2] Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29.

[3] See, e.g., Kerle v. BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304.

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