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A brain injury sustained following fatigue related accident is a warning to PCBU’s

As reported in a @Shortlist article on 9 February 2017, a mine worker suffered a ‘significant brain injury’ after driving 300km of a 430km journey home following four consecutive 12-hour night shifts.

It was found that the mine operator, on-hire company and a host employer were liable for the injuries sustained in a car accident, and were ordered to pay $1.2 million in compensation, with a contribution of 90:10 in favour of the mine operator against the host employer and 60:40 in favour of the labour hire agency against the host employer.

The case highlights to labour hire companies that their duty extends the common-law duty of care.

“This is something that happened 300km from someone’s workplace, after work, and normally people would not expect they have a duty in those circumstances,” states @Marie-Claire Foley, a partner at law firm Ashurst.

“……. the decision will make people review what systems they have in place to measure fatigue … The decision says there is a risk associated with long shifts and that risk has to be managed appropriately.”

The case found the three organisations created the risk of injury through their use of a rotating shift system that led to the employee working four consecutive night shifts and driving in response to the demands of his employment, with long distance commuting being inevitable.

The Judge presiding over case highlighted the four ways that risk could have been removed or limited. These included:

  • Limiting the length of shifts to provide a 15-hour limit between rest times;
  • Providing a bus service to transport workers at the end of a roster to major centres;
  • Providing a place for workers to rest after a shift – and making sure all were aware of it; and
  • Educating workers about fatigue and its risks.

This decision should prompt companies (including labour hire firms) to review their fatigue management system, including educating their workers. In the case of a labour hire firm, when they provide someone to a host employer, it is important to ensure that that host employer isn’t going to place unacceptable demands on the worker,” she says.

This precent case definitely has implications well beyond mining, I’m thinking nursing and healthcare, hospitality, and manufacturing for example, where lengthy, consecutive shifts are common, or to situations where the work location is remote and a period of sustained after-work travel is inevitable.

Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304 (16 December 2016)

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