Fraser (nee Butcher) v Burswood Resort (Management) Ltd - [2012] WADC 175

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FRASER (nee BUTCHER) -v- BURSWOOD RESORT (MANAGEMENT) LTD [2012] WADC 175

CORAM: STEVENSON DCJ

HEARD: 21-23, 26 SEPTEMBER 2011, 17-20 JANUARY, 17 MAY, 5-7 JUNE & 3-4 OCTOBER 2012

DELIVERED : 18 DECEMBER 2012

FILE NO/S: CIV 2590 of 2007

BETWEEN: TRACEY KATHLEEN FRASER (nee BUTCHER)
Plaintiff
AND
BURSWOOD RESORT (MANAGEMENT) LTD
Defendant

Catchwords:

Tort - Personal injury - Negligence - Employee driving home at 4.00 am after finishing eighthour nightshift - Motor vehicle accident - Scope of duty of care of employer - Whether employer in breach of duty of care to warn of increased risk of a fatigue accident during nightshift roster due to accumulated sleep debt and circadian sleep during nightshift roster - Causation - Section 19(1) Occupational Safety and Health Act 1984

Legislation:

Occupational Safety and Health Act 1984 (WA)
Road Traffic Act 1974

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela & Mr J I Cooke
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: CLP Legal
Defendant: Jarman McKenna

Case(s) referred to in judgment(s):

Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158
Chapman v Hearse (1961) 106 CLR 112
Commercial Union Assurance Co of Australia Ltd v Beard [1999] NSWCA 422
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Dredge v State of South Australia (1994) 62 SASR 374
Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v The State of South Australia [2006] WASC 270
Jones v Dunkel (1959) 101 CLR 298
Kimbers Pty Ltd v Commissioner for Main Roads & Anor [1999] WADC 49
Kuhl v Zurich Financial Services (Aust) Ltd & Anor (2011) 243 CLR 361
Kuhler v Inghams Enterprises Pty Ltd & Anor [1997] QCA 386
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Lowes v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2011] WASC 287
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
MR & RC Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Soia v Bennett [2011] WASC 59
The State of Western Australia v Silich [2011] WASCA 135
United Group Resources Pty Ltd v Calabro (No 5) (2011) 288 ALR 1

STEVENSON DCJ:

Introduction

Most actions, including walking or driving a motor vehicle, involve some level of risk or danger. We usually take risks on a calculated basis or assumption that we will not be injured (or cause injury or damage to someone else). Many tasks are mundane and routine, like driving to and from work. Rarely, if ever, is any thought given on a single occasion to the risks involved in such actions, until something happens.
At about 4.40 am on 10 December 2001, the plaintiff rolled her motor vehicle while driving home after finishing work for the defendant as a nightshift croupier at the Burswood casino. It was a single vehicle accident. It happened on a straight stretch of sealed dual carriageway known as Fremantle Road (now Mandurah Road) in the suburb of Singleton. The road was dry and the visibility was clear. There were no streetlights in the immediate area. The evidence is unclear as to the extent of the pre‑dawn light. The official time of sunrise was 5.04 am, about 20 minutes after the accident.
After finishing an eight‑hour nightshift at 4.00 am, the plaintiff changed out of her uniform and 10 minutes later began her 45‑minute drive home to Meadow Springs. The accident happened after the plaintiff had been driving for about 30 minutes.
The plaintiff was injured as a result of the accident. She has some permanent disabilities including limited use of her right arm. The parties have agreed, for the purpose of the action that, if the plaintiff is wholly successful in her claim against the defendant (Burswood), the quantum of her loss and damage is $1,000,000 plus special damages (to be determined).
The issue in this trial is whether the plaintiff has established on the balance of probabilities that the cause of her accident was wholly or partly attributable to the negligence of the defendant (her employer at the time) and, if so, whether her own negligence contributed to the occurrence of the accident. Alternatively, but on the same grounds, the plaintiff alleges her accident was caused by a breach of statutory duty or a breach of contract by the defendant. It is common ground that the alleged tort duty is co‑extensive with the contract duty.
In response, the defendant contends that the plaintiff's own negligence caused, or was a contributing cause, of the accident. The defendant says the plaintiff has not on the available evidence proved on the balance of probabilities that the cause of the accident was 'momentarily falling asleep because of the effect of the circadian cycle'. The defendant says it is as equally possible that the plaintiff's own inattention or carelessness caused the accident.
In summary, the plaintiff says at the material time in 2001 it was 'reasonably foreseeable that there is an increased risk to employees who end their roster in the pre‑dawn hours of the morning and have to go home at that time' because of the possibility of accumulated sleep debt and 'biological risk' as a result of the circadian cycle. The risk is described as an increased risk of having a motor vehicle accident while driving home. The risk is said to apply to employees working a full nightshift. In this case the plaintiff worked an eight‑hour nightshift starting at 8.00 pm and finishing at 4.00 am.
The genus of the risk is said to arise out of the circadian cycle. The descriptor, 'biological' risk, was sometimes used to describe that risk. Because of this risk, the plaintiff contends that the defendant should have adjusted the roster finish time so there was no need for the plaintiff to drive home 'in the pre‑dawn' hours (this was sometimes expressed as 'not before 6.00 am', 'not before sunrise', or by reference to the time around the 'nadir of the circadian cycle', which varied in the material relied upon as a time anywhere between 2.00 am and 6.00 am).
If the identified risk was reasonably foreseeable, the plaintiff says it was reasonably practicable for the defendant to finish its employee's nightshifts after sunrise, thereby averting or at least minimising the risk. The plaintiff says the problem is 'a rostering issue', in particular the end time of the roster. The plaintiff does not contest the length or timetable of the roster, or the length or conditions of work during her shift.
The plaintiff also says the defendant should have warned her of the increased risk of having an accident while driving home because of accumulated sleep debt and the circadian cycle as a result of working nightshifts. According to the plaintiff, if she had been warned, she would have been 'open to the possibility' of not leaving until the sun had 'started to come up' (the plaintiff's own evidence), or she might have asked that her shifts finish at 6.00 am. The plaintiff contends it can be inferred a cause of her accident was that she 'momentarily fell asleep' (a micro‑sleep) because she was driving at the nadir of the circadian cycle (the low point of alertness).
The defendant contends the identified risk was not reasonably foreseeable in 2001. It says, even it was foreseeable, the plaintiff's own evidence does not permit a finding that the accident was causally related to the alleged risk, or that there was any relevant breach of duty relating to the finishing time of the plaintiff's rosters. The defendant does not accept the alleged risk required it to change its system of work for its nightshift employees or that there were any reasonable or practicable steps it could have taken which it did not take. The defendant says, even if the plaintiff had been warned of the alleged risk, on her own evidence she would not have delayed her journey home to some indeterminate point by reference to the time or the amount of daylight.
For the following reasons, in my opinion, the plaintiff's claim has not been proven in its entirety and must be dismissed.

The pleadings

It is common ground on the pleadings that the defendant managed and operated the Burswood International Resort Casino at 201 Great Eastern Highway, Burswood. The parties agree the plaintiff was employed by the defendant to work as a nightshift croupier at the casino.
The statement of claim pleads the plaintiff worked 70 hours per fortnight undertaking eight‑hour nightshifts. The defendant in its defence contends the plaintiff worked 70 and 80 hours per fortnight over 15 full fortnight rosters on shifts of varying lengths and which commenced at 8.00 pm. According to the defendant, the shifts finished at 2.00 am or 6.00 am, but the usual time was 4.00 am.
The evidence is, and I find accordingly, that the plaintiff had nine days off work before she worked the Friday nightshift to 4.00 am, and then worked the Saturday nightshift to 6.00 am. The plaintiff worked on the Sunday night before her accident to about 4.00 am on Monday morning, 10 December 2001. As can be seen therefore, the plaintiff's nightshifts always finished at about 2.00 am, 4.00 am or 6.00 am. Her start time was always 8.00 pm.
On the pleadings the defendant admits it was an express or implied term of the plaintiff's contract of employment that, among other things, the defendant would, so far as practicable, provide her with a safe workplace, plant and equipment; supply her with adequate information, instructions, supervision, assistance and training to ensure that she could carry out her work in a safe manner; warn her of any or all dangers associated with the work that she was invited or required to perform; and not expose her to anything that may result in injury or other harm to her health in the course of her employment.
It is common ground, on the pleadings, that the defendant owed a duty at common law to take all reasonable care to ensure the safety of the plaintiff in the course of her employment, and further or alternatively, that it owed her a statutory duty pursuant to s 19(1) of the Occupational Safety and Health Act 1984 (WA) (the OSH Act) to, 'as far as practicable, meet the obligations' referred to above arising out of the terms of the contract between them.
The duty of employers set out in s 19 of the OSH Act is expressed in general terms that the 'employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing', the employer is obliged to do a number of things primarily concerned with occupational safety and health of employees performing their duties in the workplace. The express or implied contractual terms pleaded in pars 3.1 – 3.4 of the statement of claim (which are adopted for the purpose of the statutory duty relied upon) can generally be said to have their genesis in the duties imposed on an employer under the Act.
A consideration in this case is the 'reach' of the duty, whether it be by contract, by the law of tort or by statute. This is because the event which caused the plaintiff to suffer loss and damage occurred some time after she had finished work and had left her employer's premises. It is of course not the law, whatever the basis of the claim, that an employer cannot be liable for a relevant breach of duty which causes the employee loss and damage simply on the basis that the employee has physically left the workplace and the event occurs at a later point in time.
Broadly, the genesis of the plaintiff's claim is that the defendant breached its duty to provide her with adequate information, instructions and training to ensure that she could carry out her work in a safe manner and, in particular, that it allegedly failed to warn her of any or all dangers associated with the nightshift work she was undertaking. For example, it is contended that the defendant should not have exposed the plaintiff to anything that might have resulted in injury or other harm in the course of her employment, which duty included an obligation, for example, to fix the hours of her nightshift so that it finished at an earlier or later time (thereby, according to the plaintiff, minimising the risk of her being involved in a single vehicle accident while travelling home after work at the 'nadir of the circadian cycle').
It is agreed on the pleadings that the plaintiff arrived at the defendant's premises at about 7.35 pm on Sunday, 9 December 2001 and commenced her duties as a croupier at about 8.00 pm.
The parties agree that the plaintiff finished her shift at about 4.00 am and shortly thereafter left Burswood to drive home to her residence in Meadow Springs (the journey time was about 45 minutes).
The circumstances of the plaintiff's accident are a live issue on the pleadings (and on the evidence). How did the accident occur? What caused it? Why did the plaintiff's vehicle roll over on a straight, double lane bituminised road?
The plaintiff alleges that while driving in a southerly direction on Fremantle Road, Singleton, she
… momentarily fell asleep, waking to find her vehicle veering off the road. The plaintiff applied the brakes and attempted to correct the direction of the vehicle, however the vehicle skidded out of control and rolled over, coming to rest on Fremantle Road approximately 200 metres south of the intersection with Singleton Beach Road. (par 7 statement of claim)
The defendant admits the plaintiff 'lost control of the vehicle and an accident occurred' but does not admit she fell asleep, and otherwise does not admit each allegation contained in par 7 of the statement of claim.
It is common ground on the pleadings the plaintiff was injured as a result of the accident but the defendant does not admit she lost consciousness at any material time during the accident.
The court is therefore required to make findings of fact about how the accident occurred and what caused the accident. In this regard, it is common ground the plaintiff 'overcorrected' her vehicle causing it to roll over, but the issue is - what was the cause or reason why she needed to take corrective action in the first place? Fortunately, no other vehicles or persons were in the vicinity, or directly affected by the accident. The plaintiff's vehicle came to rest on the wide median strip.
The statement of claim pleads that the plaintiff's accident was caused by the negligence, breach of statutory duty or breach of contract by the defendant on the following basis:
PARTICULARS OF NEGLIGENCE
9.1The Defendant, its servants or agents were negligent in that they:
(a)Failed to review and assess the Plaintiff's duties and the scheduling of her shifts, meal and rest breaks to assess and identify the risk of injury from fatigue and tiredness when they knew or ought to have known that as a night shift worker she was at risk of fatigue and tiredness;
(b)failed to devise and implement an appropriate and effective protocol to address the risk of employee fatigue caused by working night shifts;
(c)failed to provide a safe system of work by failing to allow the Plaintiff to take adequate meal and rest breaks during her shift when they knew or ought to have known that this would increase the risk of fatigue and tiredness;
(d)exposed the Plaintiff to the risk of injury from fatigue and tiredness due to the absence of an appropriate and effective protocol to address the risk of employee a fatigue caused by working night shifts;
(e)failed to warn the Plaintiff of the risk that fatigue and tiredness could limit her ability to drive home after work in a safe manner, when they knew or ought to have known that the Plaintiff lived in Mandurah and therefore had a long distance to drive home after finishing her shifts;
(f)failed to provide adequate instruction and training to the Plaintiff to enable her to recognise signs of tiredness and fatigue and to manage such tiredness and fatigue to reduce the risk of injury at work and while driving to and from work.
The plaintiff abandoned particular (c) at the commencement of the trial. It is still relevant to note the evidence is that the defendant allowed its employees to partake in, and provided meals during the course of their employment. There is also evidence of the break times provided to enable the plaintiff to have a rest and to refresh herself during the course of her shift. This occurred at the time of table changes, which was usually on the hour. The plaintiff in the action did not argue that she was not provided with adequate meal and rest breaks during her shift. It follows that she does not contend her accident was caused by any breach of duty by the defendant in this regard. She accepts sufficient and appropriate meal and rest breaks were built into her hours of work so that she was not at any material risk in the performance of her duties (or in driving home after work). There is no complaint about the length of the shifts, nor any complaint about the nature of the work itself causing fatigue or tiredness: see Kuhler v Inghams Enterprises Pty Ltd & Anor [1997] QCA 386 (31 October 1997).
The plaintiff abandoned particular (f) in closing submissions at the end of the trial. The plaintiff (quite properly) accepted that the signs of tiredness and fatigue are self‑evident. Her evidence was she got adequate sleep and did not experience tiredness and fatigue, or any signs of tiredness and fatigue, at the relevant time or at any other time in the course of her work for the defendant. Abandoning particular (f) was a tactical forensic decision by the plaintiff as a result of the evidence and issues as they emerged in the course of the trial, in particular that causation and breach were likely to inform the result. The particular as pleaded is inconsistent with the plaintiff's own evidence and contention that she did not experience or notice any signs of tiredness or the onset of fatigue, and therefore she must have driven off the left side of the road because of a micro‑sleep (as a result of the circadian cycle) over which she had no control or notice. The issue of 'micro‑sleep' only really emerged in the evidence of Dr Hartley, after the plaintiff had given her evidence.
The defendant denies each particular of alleged breach of duty, breach of contract and breach of statutory duty. In particular, the defendant denies the plaintiff suffered from 'such fatigue and tiredness that there was a risk of injury at work or while driving home to and from work' (par 7(b)). Given the plaintiff's concessions at trial this is, in part, a non‑issue and no longer arises.
The defendant pleads that it organised the plaintiff's duties and scheduled her shifts, meal and rest breaks so it complied with its duties at common law, statute and contract. The defendant's pleaded particulars in this regard are as follows:
PARTICULARS
(i)The plaintiff was not required to work more than 76 hours per fortnight.
(ii)The plaintiff was not required to commence ordinary hours of work on more than 10 shifts in each fortnight.
(iii)The plaintiff was not required to work a shift of more than 10 hours.
(iv)The plaintiff's roster provided for a minimum of 10 consecutive hours break between the finish of one shift and the commencement of another.
(v)The plaintiff was entitled to and provided with a paid rest break of 15 minutes duration after each completed hour worked.
(vi)The plaintiff was supplied with one meal free of charge per rostered shift, to be consumed in the employee cafeteria.
(vii)The plaintiff was shown her rostered working hours at least a fortnight in advance of the date of her roster.
By par 8 of its defence the defendant contends that 'if the accident occurred as pleaded in par 7 of the statement of claim the accident was caused by the plaintiff's negligence' as follows:
PARTICULARS OF PLAINTIFF'S NEGLIGENCE
The plaintiff
(a)Drove her motor vehicle at an excessive speed in the circumstances.
(b)Failed to keep any, or any proper lookout.
(c)Drove her motor vehicle without due care and attention.
(d)Lost control of her motor vehicle.
(e)Failed to stop her motor vehicle and take a rest prior to the accident.
(f)Failed to stop, slow down or take any other action to avoid the accident.
(g)Fell asleep whilst driving her motor vehicle.
(h)Failed to take any or any proper care in driving her motor vehicle so as to avoid the occurrence of accident.
(i)Drove her motor vehicle when she knew or ought to have known that she was fatigued and/or tired and that it was dangerous or unsafe to do so.
(j)Failed to advise the defendant that she was tired and/or fatigued before driving her motor vehicle and to seek assistance rather than drive home.
(k)Failed to take any or any adequate steps to advise or inform the defendant that she was tired and/or fatigued in order to alter her hours or duties; and
(l)Failed to take reasonable care for her own safety in all the circumstances.

Further and alternatively, the defendant pleads that, if the plaintiff's accident was caused by the negligence or breach of statutory duty or contract as alleged (which is denied), then the cause of the accident was contributed to by the plaintiff's own negligence. The defendant repeats and relies upon the particulars of the plaintiff's negligence set out above.
It is common ground between the parties that the Civil Liability Act 2002 (WA) has no application in this case. Finally, I note the plaintiff did not adduce any evidence of an 'effective protocol' for the purpose of particular 9.1(b) of the statement of claim.

Issues for determination

Based on the pleadings and the issues as they emerged during the trial, the court is required on the evidence adduced at the trial and according to law to make findings, if it can, on the following issues:
(a)What caused the plaintiff to drive off the left edge of the road while driving home from work (before she took corrective action); how did the accident itself occur; did she fall momentarily asleep, (or have a 'micro‑sleep'); did she wake up to find her vehicle off the road; and/or did she apply the brakes too heavily and overcorrect the steering of the vehicle causing it to roll over?;
(b)Was a cause of the accident momentarily falling asleep (or having a 'micro‑sleep') attributable to the biological effects of the circadian cycle or general fatigue, sleepiness or drowsiness on the day as a result of accumulated sleep debt; or was it mere carelessness or inattention?;
(c)If the plaintiff momentarily fell asleep or had a micro‑sleep, was it caused by, or a result of, accumulated sleep debt and/or the circadian cycle?;
(d)Did any alleged momentary sleep, micro‑sleep or 'fatigue' arise out of an identifiable risk for nightshift workers over and above any risk associated with and arising out of completion of the employee's work duties?;
(e)Was the identified risk reasonably foreseeable or the subject of a respectable body of knowledge both in the community and by employers, such that it required the defendant, as part of its duty to the plaintiff (whether in contract, tort or statute), to take some positive action to minimise the risk?;
(f)Did the alleged increased risk of momentary sleep, micro‑sleep or fatigue for nightshift workers cause or contribute to the plaintiff's accident?;
(g)If the risk was reasonably foreseeable, did the defendant breach its duty of care to the plaintiff by not adjusting the end‑time of the plaintiff's roster until after sunrise, so that she was not driving at a time most likely to be affected by sleep debt and/or the circadian cycle?;
(h)If the risk was reasonably foreseeable, did the defendant breach its duty of care to the plaintiff by not providing her with a warning of the risk? If so, would the plaintiff have waited until after sunrise before leaving to drive home?; and
(i)If the defendant is liable to the plaintiff to what extent, if any, was she contributorily negligent for the accident?
Some of the issues involve a factual inquiry in relation to the evidence adduced at trial, and some require the application of legal principle to the facts once determined. The evidence in the trial was greatly affected by the delay on the part of the plaintiff to commence her action against the defendant and, once having done so, in bringing the matter to trial. In my view, this has prejudiced a fair trial of the issues in this case and it also caused delays in the trial itself.
A number of witnesses of fact, including the independent witness who observed the accident scene, remarked that, due to the lapse of time, their memory of relevant events had been affected. There was on the evidence some dispute as to the precise location of the accident which also can be attributed to the lapse of time. For example, Senior Detective O'Keefe accepted that he attended the scene of the accident on 10 December 2001, but quite understandably had no independent recollection of having done so, even after refreshing his memory from documentation prepared at the time.
The other difficulty for both parties concerns the factual inquiry of whether there was a respectable body of knowledge known in 2001 in relation to the alleged fatigue risk for nightshift workers, and the extent of that knowledge. This is not a case where the employee says, by reference to the machinery itself or the work task, that the risk was obvious to any reasonable employer. Much of the evidence relied on by the plaintiff to prove the risk was produced after the material date and is to be found in a different context and circumstance, namely professional drivers driving as part of their employment duties at night‑time. Intertwined with this issue is the application of common sense and human experience that the human body responds to stimuli and, perhaps more relevantly in this case, to a lack of stimuli, in different ways at different times of the 24‑hour cycle.
I note no medical evidence from a qualified medical practitioner was adduced at trial in respect to any issues, including in particular the circadian cycle and 'micro‑sleep'.
As a result of the accident, the plaintiff suffered serious injuries but fortunately, following recovery, none are life‑threatening. The plaintiff's injuries included: bruising and lacerations; muscular and soft tissue injuries; and a fractured rib and extensive lung contusion. There was also a major injury to her right shoulder, involving a fracture and dislocation which has left her with limited use of her right arm and her right hand, which in turn restricts her ability to undertake tasks requiring the use of both arms. Other symptoms which evolved from her injuries include anxiety and depression and significant medication for pain relief.
As mentioned, the only issue the court is required to determine is whether the defendant is liable to the plaintiff for the injuries she suffered as a result of the accident. The quantum of her loss and damage has been agreed for the purpose of the action as $1,000,000, plus special damages.
Incredibly, the trial was listed initially for only three days, although the first tranche of evidence was heard over four days. The progress of the trial was delayed by issues relating to discovery which occurred shortly before the commencement of the trial; issues concerning the admissibility of evidence, including documentary records as a result of the parties' inability to locate witnesses due to the lapse of time; an application to extend the scope and ambit of the plaintiff's claim as particularised in the statement of claim to include general allegations aimed at the alleged inadequacy of the defendant's occupational health and safety system and procedures; and the production of subpoenaed documents from third parties, including the Commissioner of Police and relevant government departments. The result is that the 10th anniversary of the plaintiff's accident came and went before the hearing could be completed.
The matter proceeded over a range of dates on four further separate occasions. It is a matter of regret to the court that, due to counsel's unavailability on two of those occasions, earlier dates could not be utilised. Fortunately, the trial delays in this action are not the norm in this jurisdiction. Usually civil matters are ready to be heard when the matter is entered for trial and the hearing is usually completed in the allocated hearing dates in a single tranche.

Witnesses

Tracey Kathleen Fraser

The plaintiff gave evidence on two separate occasions during the trial. Her evidence included her personal circumstances and work experience as a croupier before coming to Australia, how she obtained work as a croupier at Burswood and the nature of her duties in this role. The contentious part of her evidence concerns the relevant circumstances of her accident, and in particular how it occurred and the reason why it happened.
The plaintiff was born on 2 February 1970. At the time of her accident on 10 December 2001, she was aged 31 years 10 months 8 days. At the time of the trial, she was aged 40 years 7 months 19 days. The plaintiff migrated to Australia from England in February 2001 where she had worked as a croupier in two casinos. She was an experienced dayshift and nightshift casino worker before she came to Australia.
At all relevant times the plaintiff lived in Meadow Springs near Mandurah.
The plaintiff started work for the defendant on 26 April 2001. She only ever worked nightshifts. Her evidence was that her nightshifts started at 8.00 pm and finished at 4.00 am unless she was asked to do overtime until 6.00 am. The plaintiff worked nightshift on the Friday and Saturday nights before her last night on Sunday, 9 December 2001. In particular, she worked the Friday nightshift to 4.00 am and the Saturday nightshift to 6.00 am. Prior to this she last worked about nine days earlier on 28 November 2001 and described the break as a holiday break.
The plaintiff said generally weekends were busier than other nights during the week. On arriving at work her evidence was she did not usually allow time to partake in the meals and refreshments made available by Burswood to its employees. Instead, she would go to the pit area designated to her for the night to report to her 'pit boss' who would then assign her four to six tables which she was required to work during the shift. The plaintiff was required to work for an hour at the tables before being relieved for a 15‑minute break and returning to the same or a different table.
The plaintiff said during the 15‑minute breaks she would wash her hands, go to the toilet and have a drink. She did not have a full meal in her breaks but would sometimes eat something. She said the break times were limited to 15 minutes, otherwise everybody else was put out of time.
The plaintiff said she was provided with her roster fortnightly in advance. Depending on the roster she would have between two to four days off during the roster period, bearing in mind she only worked nightshifts. She described her position as a permanent part‑time classification. She understood she was allocated 72 hours a fortnight but that the hours might be increased if overtime was available. She said she 'very rarely' went over 72 hours per fortnight and was occasionally asked to work until 6.00 am. She described her average hours worked per fortnight as between 50 and 70 hours. She said the maximum number of nights worked in a row was four or five.
On completion of her shift, she would again wash her hands, go to the toilet and get changed straightaway (as she was required to hand her uniform in). She would then go straight to the carpark and drive home. She estimated it took her about 5 – 10 minutes to finish work and get to her car. I infer the plaintiff did not waste time leaving her workplace, consistent with her desire to get home as soon as possible to see her family and to sleep. Her departure routine was like her arrival routine, as short as possible when not actually working.
During the course of her employment by Burswood, the freeway was extended which changed the route she took to and from work. The plaintiff said before the freeway was extended, her travel time was about one hour 15 minutes, and after the extension, it took about 50 ‑ 60 minutes depending on what time she finished work. She described her routine on getting home as having a shower and going straight to bed. She said she had no difficulty falling asleep and slept seven to eight hours until about 12.30 pm. At the time she had a 4‑year‑old daughter at home who was cared for by her partner. He was not working at the time.
The plaintiff said when she was working nightshifts she would
… just hang around the house usually. If I felt a bit tired I'd probably go back to sleep for a couple of hours before I went back to work but when I was at work I didn't really do anything. I used to do all my other stuff when I was on the days off. Shopping and stuff like that.
The plaintiff said she and her partner used to share meal preparation and he would do about 70% in this regard. She said she would do the shopping and anything else that needed to be done on her days off, including her own sporting and exercise activities.
On the morning of the accident, the plaintiff said she did the 'usual' – changed out of her uniform, returned it and then left the casino by going straight to her car. She said she remembered seeing the 10 km mark to Mandurah and then described the accident as follows:
I just remember hearing a big shuddering – like, a big sound and my steering wheel started shuddering and when I looked up there was a big mound on the – not a mound, like a big verge on the side of the road that goes the whole way of the Fremantle Road. (emphasis added)
She said the mound was on her left and she went on in her evidence to say:
So I panicked a bit and slammed my brakes on and tried to get out of the way, you know, go back onto the road, so to speak, so – but, yeah. I think I overcorrected too much because it started heading for the – middle section of – of the double road … And by that time I think I, I started panicking then because everything started going a bit – I think I must have tried to get back onto the road again and that's when the car flipped over … The last thing I – thank you. The last thing I remember is putting my hands up to protect my head … that's all I remember.
The plaintiff described the area of the accident on Fremantle Road (now Mandurah Road) as being bare of vegetation foliage and just all sand. Her evidence was she was doing 'between 90 and 100 km per hour'. At the time she was driving a Toyota Echo motor vehicle, which she purchased as a new car after starting work at Burswood. The vehicle was serviced about a week before the accident and, as far as the plaintiff knows, investigations after the accident did not disclose anything mechanically wrong with the vehicle. When the vehicle was serviced before the accident, she was told a rear wheel had a puncture caused by a nail but that it had been fixed and, according to her, she was told there was nothing to worry about.
The plaintiff further described in detail her recollection of events immediately before the accident in her evidence‑in‑chief as follows:
I heard the sound first and then my steering wheel started shuddering … it was in the – you've got the road and then you've got some rough land and then the embankment, so it was in the rough bit of road. I'd actually left the road and – yep.
The plaintiff said the rough bit of road was constituted of gravel and sand and remnants of the embankment. She was asked directly in examination‑in‑chief what caused her vehicle to move on to the gravel embankment and her evidence was, 'I think I must have fallen asleep because there's – it's just a straight road'. This is of course an assumption and conjecture on the part of the plaintiff because she did not give direct evidence that she had fallen asleep. In fact, she disavowed that she noticed any onset of signs of tiredness or fatigue immediately before the accident. The plaintiff said her recollection immediately before her vehicle left the road was that she was driving in the left lane of the dual carriageway in a southerly direction on Fremantle Road towards her home. On being asked again by her counsel whether she recalled what caused her vehicle to move off the road on to the gravel shoulder, her response was 'No'. She said:
I've gone over it a number of times but there's just one minute I'm driving along, next minute I'm in the – heading for the embankment.
During this evidence counsel for the defendant asked the plaintiff through her counsel to clarify whether she was describing what she recalled seeing at the time of the accident, or whether she was describing what she knew from having driven on the road many times before and after the accident. The plaintiff's evidence in response is not clear as to whether she was speaking of a memory of the embankment at the time immediately preceding the accident or whether she was speaking from knowledge of the road having travelled it many times before and after the accident.
Because of the issues in the trial it is important to record the evidence of the plaintiff as to her description of how the accident happened. Again, in this regard she further stated in her evidence‑in‑chief as follows:
Now, you then told the court that you – and you got into the – when you realised that your car was on the gravel embankment, what did you do? – I started to panic and I just slammed my brakes on and moved my wheel to the right ‑ ‑ ‑
Yes? - ‑ ‑ ‑ to try and get back onto the road.
Did you manage to get back onto the road? – Well, then it sort of headed for the bitumen. So it went over the two – two lanes of the road and headed for the – the medium [sic] strip. So then I braked again and turned to the – I presume I turned to the left trying to get back onto the road ‑ ‑ ‑
Okay? - ‑ ‑ ‑ but that was a bit blurry from then on.
The plaintiff's evidence was that her next memory was of a man coming to her assistance and telling her he would telephone the police and an ambulance. The plaintiff said she was unable to get out of the motor vehicle and that the fire brigade used the jaws of life to extricate her.
By reference to exhibit 1 (five photographs), the plaintiff explained the locale of the accident and the position of her vehicle and travel.
In cross‑examination the plaintiff was asked about her attempts to obtain employment when she arrived in Australia on 1 February 2001 and culminating in her employment with the defendant. In England the plaintiff worked for the Stakis Regency Casino for over eight years from July 1989 as a dealer and also as an inspector. While working for the Stakis Regency Casino, she worked dayshifts and nightshifts, the former between 1.00 pm and 9.00 pm and the latter 9.00 pm until 4.00 am, unless she was required to 'count the money' which happened about once a week and which took about an extra two hours to complete. The plaintiff also worked at The Money Shop after attending business college where she completed a course in computers, literacy, information technology and word processing.
In cross‑examination the plaintiff was taken to her application for employment with Burswood dated 16 February 2001. She provided her curriculum vitae at the same time. A condition of the employment application was that she would work shiftwork as and when necessary. The plaintiff's first preference was to work as a dealer. Her second preference was as an inspector. She said this was because she was in a foreign country and wanted to be comfortable in her employment and loved 'dealing'. On the application form she indicated she did not have her own transport (because at the time she did not own a vehicle). There is no evidence whether there was any discussion as to how she proposed to travel to and from work, and what the likely travel time would be.
The plaintiff described her job interview with Ms Lancer. She said the general duties of dealers and how the roster and shiftwork system operated at Burswood were explained to her. She also did 'a table test' to confirm her skills.
The plaintiff accepted she was a fit and active person at the time of her accident. According to her, her activities included swimming, keeping fit, karate, boxercise, walking and socialising; all of which she said, she continued to undertake after starting work at Burswood.
The plaintiff said in cross‑examination that, during an orientation day shortly after she had been employed, she was provided with Burswood's document entitled 'Working Together – Your Employee Guide to Burswood International Resort Casino'. This document contains information about Burswood including grooming and dress requirements, employee benefits, grievance procedures, conditions of employment, and company rules and regulations. Relevantly, s 7 deals with occupational health and safety. It describes Burswood's safety policy and the responsibilities of the health and safety manager, safety committee and safety representatives. This section stresses the importance of the role of employees in the process of ensuring maximum safety and minimal health risks for all. The section also sets out the procedure for resolution of any issues or safety concerns. The plaintiff accepted she was aware of the content of the publication and, in particular, of the existence of a health and safety committee and manager, and the grievance procedure for reporting problems.

The plaintiff (nee Butcher) signed a letter of offer of employment from Burswood dated 20 March 2001 on 9 April 2001. The offer of employment was conditional on the plaintiff entering into an Australian workplace agreement and successful completion of a three‑month probationary period. The position offered was 'part‑time dealer' reporting to an 'inspector'. On 1 May 2001 the defendant signed a part‑time Australian workplace agreement which was accepted by the plaintiff on 27 March 2001.
In cross‑examination the plaintiff was shown an induction checklist which she signed on 26 April 2001. Not all the indicated procedures were ticked as having been covered but, for present purposes, relevant items covered included what to do if injured, sickness on duty, reporting hazards, reporting accidents or injuries to the medical centre, stretch exercises and how to raise any health and safety issues. There was some doubt as to whether the title 'Policy and Procedure Manual' was in fact the document 'Working Together' which the plaintiff acknowledged she had been provided and which was ticked on the induction checklist. The plaintiff has no memory of signing the induction checklist and had no independent memory of whether it was completed at the time she commenced work on 26 April 2001.
Probationary period performance appraisals for the plaintiff dated 30 May 2001 and 2 August 2001 were tendered. They indicated, to the credit of the plaintiff, a high level of performance and complete satisfaction by Burswood with respect to the discharge of her duties. There is no evidence of the plaintiff being tired or not alert at work.
In cross‑examination, the plaintiff accepted that generally Burswood was a good employer. She also accepted that during her interview there was discussion about whether she would be able to cope with shift work and that she answered questions of that ilk in the affirmative. She accepted that at the time Burswood had confirmed through discussion with her that she understood what was involved in working nightshift. The questions in this regard were general and it was not suggested the plaintiff was given any specific warnings or advice about risks peculiar to and arising out of working nightshifts.
The plaintiff confirmed that as an employee she was given a meal allowance which she said she did not tend to use because she was not hungry during work hours and she did not, unlike some other employees, take advantage of the provision of food by arriving early to work or staying later. Her evidence was that she would eat her meals at home. She just came straight to work, did her job and left as soon as she had finished.
The plaintiff accepted in cross‑examination that she was always given two weeks' notice in advance of when she would be working her nightshifts. She used the free car parking provided at Burswood for employees. She said she would collect her clean uniform on arrival at work and changed in the locker room. She described the canteen area used during breaks where employees socialised with each other and were able to watch television during their rest time. Her evidence was that at the end of her shift she changed and handed in her uniform and did not hang around. Again, the plaintiff said she did not take the opportunity to have a shower and that her practice was to leave as soon as she could.
The plaintiff's evidence was that she socialised with other employees after work on one occasion only. Otherwise, during work hours she kept to herself apart from speaking to people she knew. Relevantly in this regard, she said that in discussions with others at Burswood she could not recall fatigue or tiredness being a topic of discussion in relation to driving home. There is no evidence it was ever raised as a health and safety concern by anyone at Burswood for any reason.
The plaintiff confirmed in cross‑examination that during nightshift her normal routine was to get home, go to bed, have 'a good eight hours' sleep' and then take it easy, knowing she had a shift to do in the evening. Her evidence was that 'she hardly ever went to clubs or anything' when she was working shifts. Anything extra around the house or otherwise was, according to her, always done during her time off. Her evidence was that there was nothing different on the night before she had the accident.
In cross‑examination the plaintiff accepted she would usually leave work at about 4.10 am and then, after the freeway was extended, she would arrive home at about 5.00 am, so that the journey took 45 ‑ 50 minutes.
The plaintiff was cross‑examined about the circumstances of the accident. The plaintiff said the mound on the left side of the road 'was right in front of me when I realised what had happened'; 'on the day of the accident, it was right in front of me. That's why I swerved' (ts 102).
The plaintiff said she remembered seeing the petrol station on the horizon on the way home and indicated it was in the photograph between the telegraph poles which she marked with a red circle on exhibit 1.1. On being pressed, the evidence of the plaintiff was that she only knew the accident occurred in the area indicated by the photographs because it happened before the petrol station. She said she had just passed the 'little Mandurah sign' and accepted that her description of the accident location was based on what she had been told by the inspector. Notwithstanding this, the plaintiff's evidence was that she had a clear recollection of what was happening leading up to the accident, which included a memory of the 10 km sign to Mandurah and the petrol station on the horizon.
During cross‑examination, the plaintiff described the immediate circumstances of the accident as follows (ts 104 – 105):
Is that the one? Okay. Now, you said that you drove your car towards the median strip and you recall doing that? – No, I didn't drive it, I lost control.
Okay? – Yeah.
All right. So somehow the car ended up going towards the median strip? ‑ I woke up and slammed my brakes on and turned the wheels and then the car went out of control and headed towards the median strip.
And you can clearly recollect your car pointing in that direction as it took off into the air? – Like I said, I saw it heading for the median strip and then as I tried to slam my brakes on again and turn the wheel, that's when I lost consciousness.
All right. Now, telling the court that you think you must have fallen asleep? – Yes.
But at the same time, you're telling the court you have a very clear recollection of that day and right up to seeing the 10‑kilometre sign to Mandurah and seeing the petrol station on the horizon? – Yeah.
Again the plaintiff, after her evidence was clarified, says she thinks she fell asleep because she lost control of the vehicle. She did not give direct evidence of personal knowledge that she knew she had a sleep, or fell asleep, because she remembered going to sleep or waking up. It is merely supposition or conjecture on her part that she must have fallen asleep, on her case for a microsecond. Her evidence in this regard was less than certain.
The plaintiff confirmed that, shortly after arriving home from hospital about two weeks after the accident, she attended a police station and made a statement dated 28 December 2001 about the accident. The plaintiff admitted she had recently read the statement. She did not accept that a police officer had suggested to her the accident was caused by her falling asleep. She maintained that she told them - 'I think I'd fallen asleep'. Although this is equivocal (again), the plaintiff's evidence, at this stage, was that she was certain she told the police she had fallen asleep because, according to her, the officer had said 'you do know that you might be up for criminal charges for dangerous driving'.
The plaintiff accepted that in her police statement she said:
I do not know why the accident happened. Possibly I dropped off for a moment, however, I have no history of blackouts or similar and I have made this same trip from Perth to home since April this year without encountering any prior problems.
Notwithstanding her prior statement to the police, the plaintiff maintained in her evidence, consistent with her case theory for the trial, that she told police she had fallen asleep. It must be observed that there is an inconsistency between the plaintiff's evidence on this issue and what she told the police shortly after the accident about why the accident occurred. At trial the plaintiff purported to say that she fell asleep, whereas in her statement to the police she said she did not know why the accident happened. Again, shortly after the accident, the plaintiff speculated that she might have 'dropped off for a moment'. At trial she was attempting to say she knew for certain that she did. This raises a credibility issue about the plaintiff's testimony. It is a critical fact for the plaintiff of course because, if she does not prove on balance that she fell asleep or had a 'micro‑sleep', then the next link to fatigue or, alternatively, the circadian cycle as the cause of or reason for the sleep, is otiose and does not arise, with the result that her claim must fail. This was accepted by her counsel in closing submissions.
It was put to the plaintiff that she did not tell the police anything about the embankment when she made her statement. Her response was (ts 106):
I said to them that I'd gone into the gravel and then slammed my brakes on and steered my car to the left – to the right, sorry, not the left.
On one view this suggests the plaintiff was conscious when her vehicle left the pavement on the left side of the road because she describes how the vehicle went on to the gravel and the corrective action she took to regain control. There is a danger of considering the evidence too piecemeal. Regard must be had to the whole of the plaintiff's evidence to discern what she is saying. The plaintiff's evidence in cross‑examination was as follows (ts 107 ‑ 109):
And isn't it the case that if you were driving along and suddenly someone stopped you and said, "What did you see in the last five minutes", you'd be struggling, on most occasions, to give a detailed account of what you'd just observed? – I don't know, I'd like to think I've got a – I'm quite observant person.
And isn't it the case that you could easily just be driving along thinking about what to cook for dinner, what to get for the shopping, the fact that you're pregnant and you're going to have a baby soon, or in nine months' time, and it's happy news and all these things are going through your head when you're driving home on these – on that occasion? – No, I was actually thinking I want – wanted to get home and go to bed.
Yes, and you had the radio on? – Yes.
You were listening to the songs on the radio? – I presume there were songs on, yeah.
Yes. Right. So you could simply have been inattentive for a split second of time or enough time to drift onto the left‑hand side of the road? – No.
There are many explanations for you leaving the road, aren't there? Only one of them is the possibility that you dozed off? – Like I said, I was in – I'm a good – well, I was a good driver. I was in the left‑hand lane of the thing. Next minute, I hear the gravel and then I'm heading for the embankment.
But accidents happen, don't they? – They do happen, yeah.
For all sorts of reasons? – Yeah, but there was nothing there for me to have an accident.
Just going to paragraph 10 of your statement to the police, you said "I can't recall feeling overly-tired at the time"? – No.
Right. Now, when we're talking about that, you're talking about just before the accident happened? – Yeah.
So you had been driving at that stage for about 40 minutes, is that right? 30 minutes, because you would have left about 10 past four? – Yeah, yeah.
Okay. So 30 minutes into your drive and you didn't feel overly‑tired at the time? – No.
Now, did you ever, when you were driving, feel, "Gee, I'm feeling a bit sleepy, got to wind the window down, get a bit of air in or stop and have a driver reviver", all those things that the police warn us to do? – No.
Are you aware of them now? – Yes.
And so you never felt at any stage in your entire driving career, tiredness when you were driving? – Sorry?
You're saying that in your entire driving career, you never felt any tiredness when you were driving? – Not when I went or come home from work. I don't recall.
Right. On any occasion? – No, I don't think so.
Right. So right up to the time of the accident, you didn't feel any tiredness driving, at any stage? – No. No.
And I take it you've never felt tired when you're driving, ever? – Well, I do now, but I mean, if we went on long trips or something, then I did the right thing and we shared driving or something, you know.
Okay. All right. So right up to the time of the accident you'd never had that experience of feeling a little bit tired and you should pull over and give yourself a break? – No.
Had you ever heard of anybody else being tired when they were driving and having that problem? – I've not – I've never really asked anybody.
So for you, you wouldn't have through – you would never have thought that driving and tiredness was an issue for you, would you? – It never was an issue.
It was suggested to the plaintiff in cross‑examination that she did not have a clear recollection of the circumstances of the accident and that, in effect, in her evidence‑in‑chief, she was reconstructing what she had been told by others after the event. Ms Mangan, counsel for the defendant, also relied upon the plaintiff's statement to the police to emphasise that at the relevant time the plaintiff did not have any concern about being tired or fatigued. The plaintiff's evidence was (ts 109 ‑ 110):
Now, if you just go to paragraph 10 of your statement to the police, first of all in paragraph 8 you say, "When I left work, I was feeling okay, not particularly tired"? – Yeah.
And then you emphasise again in paragraph 10:
'I can't recall feeling over‑tired at this time, however, afterwards I felt my car leave the edge of the road and enter onto the bumpy, rough verge.'
? – Yeah.
Right. Now, there's no reference there to whether it was the left or the right there? – I don't know.
There's no reference there to any mound? – Yeah.
So you had an opportunity to explain to the police exactly what happened; can you explain to the court why you didn't mention this mound or that you drifted to the left, or went to the left or – at that stage? – Because I was still in a bad condition. The only reason why I got discharged from hospital was because I – it was Christmas and I wanted to be with my daughter, so I was still in a bad way and the – so the – I couldn't really be exactly 100 per cent about why – what happened with things. You know, little things like the left or the right‑hand side of, you know.
And then you said "I panicked, braking and steering right"? – Yeah.
And "I can't recall what happened after this"? – Well, it's – yeah, it's ‑ ‑ ‑
So 18 days after the accident, you didn't have any recollection of the car turning or rolling over like you ‑ ‑ ‑? – I didn't have any recollection of it rolling over anyway.
After the accident the plaintiff obtained a grant of legal aid to investigate if she had a claim, presumably against Toyota, based on 'the unusual reaction' of her vehicle under heavy braking and the failure of the airbags to activate. The plaintiff did not recall instructing her solicitors, in accordance with the recommendation of the investigator, to obtain an opinion from a mechanical expert. One inference (not the only one) from the plaintiff's course of action after the accident is that she believed the accident was caused by something mechanical to do with the vehicle, which admits the possibility that she expected she should, with reasonable care and skill, have been able to bring the vehicle back on to the road safely.
As part of the private investigation, the plaintiff signed an undated statement setting out in detail the circumstances of the accident. She accepted the statement was correct. Relevantly, the statement provided:
I recall that when I travelled along Stakehill Road and turned left into Fremantle Road, there was no other traffic.
I then travelled in a southerly direction along Fremantle Road and gradually built up my speed after entering Fremantle Road to a speed of approximately 90 – 100 kph.
The speed limit on that road is 110 kph.
I recall driving passed Pagonni Road where there is a turn-off into the Marapana Deer Park.
Just passed that point Fremantle Road becomes a long straight stretch.
I maintained my speed of about 90 – 100 kph.
That is the last I recall until hearing noises like the vehicle being driven on gravel.
I must have dosed [sic] off behind the wheel momentarily and when I heard the noise I panicked and braked heavily.
I remember that the vehicle was headed towards a large mound that was located on the right‑hand side of the vehicle on the median strip.
Fremantle Road at that point is a four-lane carriageway with two lanes for southbound traffic and a further two lanes for northbound traffic. They are separated by a wide median strip.
When I heard the noise and woke I recall my vehicle was almost all off the road and had veered off to the right.
When I hit the brakes I tried to steer the vehicle straight but I lost control in the soft ground at the side of the road.
My vehicle skidded into the mount that was in front me, collided with the mound and then rolled over end no end after hitting the mound of dirt on the median strip.
I recall that the vehicle rolled over and over.
I didn't think it would ever stop.
The last I recall was being thrown about violently inside the vehicle.
I was wearing my seatbelt but was still being thrown around inside the vehicle.
I must have been knocked unconscious in the accident because the next I remember was coming to and finding that the car had stopped and was back on its wheels.
The plaintiff accepted in cross‑examination that this version of the accident differed in a number of respects to her evidence. First, the large mound was on the left side of the road. Secondly, the mound was not on the median strip. Thirdly, when the plaintiff heard the noise of the vehicle being driven on gravel, it had not veered off to the right. Fourthly, the vehicle did not skid into the mound that was in front of her and collide with it. Fifthly, according to her statement she recalled the vehicle rolling over and thinking it would never stop.
The statement is consistent with her evidence to the effect that she assumed she must have 'dozed off behind the wheel momentarily and when [she] heard the noise [she] panicked and braked heavily'. The error in the description of the physical features of the accident scene might be explained by the plaintiff's evidence that she did not return to the accident scene before making her statement (notwithstanding she had driven the road many times before).
The plaintiff maintained her evidence was correct and that the statement was incorrect to the extent of the inconsistencies, including the point in time at which she says she first appreciated that her vehicle was not on the road. She maintained she could not now recall the vehicle rolling over. She accepted her statement that the 'airbag did not inflate in the accident despite the fact that I ran almost head‑on into the mound of dirt that was located on the median strip' was incorrect. She also accepted the statement was incorrect when she said 'I literally hit the mound head‑on before my vehicle rolled over …'.
In re‑examination the plaintiff said she did not remember if she read the statement before she signed it and had no recollection of telling anyone that the mound was on the median strip.
Critically, in cross‑examination as to the correct cause of the accident, the plaintiff said:
So a reason that you strongly believed – or an explanation that you strongly believed in for the accident was that there was something wrong with your car? – No, I believed that I'd braked too heavily and, because I'd over‑steered, the car had gone out of control.

Having carefully considered the evidence available to the court in this case, and in particular the plaintiff's own evidence, I am not persuaded on the balance of probabilities that the plaintiff fell asleep or had a 'micro‑sleep' in the sense referred to by Dr Hartley, and that this was a cause of her driving off the road immediately before the accident.
I would add that, even if the plaintiff did fall asleep while driving, I would not find, based on her own evidence and the uncontested evidence about the nature and extent of her nightshift roster and work duties, that any micro‑sleep was caused by the identified foreseeable risk, that is, as a result of accumulated sleep debt arising out of the plaintiff's employment.
In any event, even if the plaintiff had been given a warning of the risk, I am not persuaded she would have delayed her journey home. She was firm in her attitude to not spending any unnecessary time at work (this is not a criticism). She minimised her time in the workplace and wasted no time in getting changed and leaving for home. There is no likelihood that the plaintiff would have taken any steps which would have delayed her departure, even with knowledge of the risk and opportunity to nap before leaving.
The plaintiff's own evidence was that she spent minimal time at work, she did not socialise with other employees (except on one occasion), and that her priority was to get home to be with her family and to have her sleep. I have no doubt she was a responsible employee in this regard and managed her sleep cycle accordingly. She did not have any accumulated sleep debt at the time. She was also an experienced nightshift worker and fully appreciated the risk of driving home tired at the end of a nightshift. I am not persuaded, applying the relevant test, that there was any causation of the plaintiff's accident as a result of the defendant's breach of duty. The warning, if given, would not have prevented or minimised the risk of the occurrence of the plaintiff's accident.

Contributory negligence

In view of the findings made, it is not possible to make findings of contributory negligence because no liability has been attributed to the defendant arising out of the breach of any relevant duty owed to the plaintiff. It follows from those findings that the likely cause of the plaintiff's accident was driving without due care and attention, and proper skill. The court is not obliged to find the reason for the accident if the available evidence does not permit it to do so. As the driver, the plaintiff was the person responsible for the safe driving of the vehicle, but no blameworthiness for her unfortunate accident can be legally attributed to the defendant. If the plaintiff had fallen asleep while driving then, depending on the reason why and the breach of any relevant duty, the court would have been obliged as between the parties to make findings apportioning blameworthiness for the loss and damage suffered.

Occupational Safety and Health Act 1984

The plaintiff alleges the defendant breached s 19(1) of the Occupational Safety and Health Act 1984 (OSH Act) on the same grounds contained in the particulars of negligence. Section 19(1) states that an employer shall 'so far as is practicable' provide and maintain a working environment in which its employees are not exposed to 'hazards'.
Non‑compliance with s 19(1) gives rise to liability for prosecution, but also supports a claim for damages by an employee for breach of the employer's duty imposed by s 19(1): MR & RC Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [48] (Pullin JA). The duty only arises if there is a 'hazard', which is defined to mean anything that may result in injury or harm to the health of a person. The obligation is concerned with ensuring employees are not exposed to hazards in the workplace. The duty imposed by the OSH Act was given detailed consideration by the Court of Appeal in Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117. As Murphy JA explained in that case at [30] – [36], the duty imposed on an employer is not an absolute duty. It is qualified by the phrase 'so far as is practicable'.
In my view, the duty imposed by the OSH Act has no application to the risk relied upon by the plaintiff in this case. The risk does not concern or involve a hazard in the plaintiff's workplace. The risk arises out of the plaintiff working through the night for the defendant and only manifested itself (in this case) after the plaintiff had left her workplace. The relevant nexus to her workplace and any physical hazard in that workplace is absent.

The plaintiff's claim for breach of contract

It is common ground that the duties relied upon by the plaintiff for her claim in tort are co‑extensive with the duties owed by the defendant to the plaintiff by reason of her contract of employment. In the premises, the plaintiff's claim for alleged breach of contract must be determined with the same result as her claim in tort.

Conclusion

In summary, I find:
(1)The increased risk of the plaintiff being involved in a motor vehicle accident while driving home after working an eight‑hour nightshift as a croupier starting at 8.00 pm was a foreseeable risk which a reasonable employee in the defendant's position would have foreseen in 2001. The risk is the increased risk to the plaintiff of having an accident while driving home in the pre‑dawn hours of the morning due to fatigue or sleepiness because of accumulated sleep debt occurring over the period of her nightshift roster, and because of interruption of the circadian cycle which is regulated by the day/night cycle. The risk is real. It is not far‑fetched or fanciful, and is therefore foreseeable.
(2)The scope of the defendant's duty of care to the plaintiff includes a positive duty to warn the plaintiff of the foreseeable risk. The defendant should inform the plaintiff of the basis of the risk in general terms so she is alerted to the increased risk to her while driving home during the low point in the circadian cycle of alertness. The warning should include information about the indicators of the onset of fatigue and sleepiness. In that way, the plaintiff can identify any subjective feelings thereby alerting herself to the onset of the warning signs so she can make an informed decision about what action to take. She should be told that, if she is overly tired or sleepy before leaving work, she should rest or nap before driving home; or make alternative arrangements (the risk is not just to her but to other road users). The warning should also include an explanation of the concept of 'masking' which occurs because of stimuli in the workplace. A warning to the plaintiff in these general terms is necessary, irrespective of the uncontroverted evidence that, when driving, your body will tell you when you are tired. This is because, in part, the action of driving itself will take away the self‑checking process and tend to prevent the state of real fatigue or sleepiness revealing itself.
(3)The duty of care owed by the defendant to the plaintiff as a result of the foreseeable risk does not, in the circumstances of this case, include a requirement to adjust the finish time of the plaintiff's roster to 6.00 am or, alternatively, sunrise. In each case this question will depend on balancing all the various competing factors, which include the paramount importance of the plaintiff getting optimum sleep as early as possible in normal daytime hours and unaffected by daylight. Reasonable steps by an employer to safeguard an employee from danger are all that is required.
(4)The defendant breached its duty of care to the plaintiff by failing to warn her of the identified increased risk, and the reasons for the risk and its operation on her as a nightshift worker.
(5)The defendant's breach of duty did not cause the plaintiff's accident. The giving of the warning to the plaintiff, which the defendant did not do, would not have prevented or minimised the risk of the plaintiff losing control of her vehicle and suffering the injuries she did. The cause of the accident cannot be attributed to the failure of the defendant to warn the plaintiff in the required manner. The plaintiff's own evidence is that she did not experience any of the indicators of fatigue or sleepiness prior to the accident. She was an experienced nightshift worker and managed her sleep requirements responsibly. As such she would have known if her body was telling her she was sleepy (exhibit 22, page 6). The warning, if given, would not have prevented or minimised the risk of the occurrence of the plaintiff's accident.
(6)The true cause of the accident was because the plaintiff panicked. Instead of driving with due care and skill, she braked heavily and over-steered the vehicle causing it to roll over. She had time and opportunity, assuming she was driving with due care and attention, to take the appropriate action to control her vehicle.
(7)I am not satisfied on the balance of probabilities on the available evidence, including the plaintiff's own evidence, that she 'momentarily fell asleep' causing her vehicle to leave the left side of the road before she panicked. At all times this was conjecture on her part because she had no other explanation to police for what was, prima facie, careless driving. She offered the same speculation, in the context of a different version of events, to a private investigator engaged at the time to consider if there was a mechanical reason why she had not been able control the vehicle. It is inconsistent with her evidence at trial. According to her, she was not tired and had not been tired. The reason for her vehicle leaving the road the first time is likely to have been momentary inattention. The plaintiff's reliance on Dr Hartley's purported expert opinion on the occurrence of 'micro‑sleeps' does not permit a proper understanding of the phenomena or any findings to be made that this was a cause of the plaintiff's accident. The inadequacy of the plaintiff's evidence in this regard is not overcome by a Jones v Dunkel inference against the defendant because it did not adduce any evidence on this issue. The threshold and need for it to do so was not met.
I would add a postscript. The preparation of these reasons for decision and their length is attributable to the way in which this case was litigated on and off over a 12‑month period on five separate occasions. The state of the evidence was severely impacted by the 10‑year delay which has occurred since the plaintiff's accident. Dr Hartley's first expert report was commissioned by the plaintiff's lawyers over six years ago. These matters made it difficult to discern what the true position was on a number of issues as they existed in 2001. All of this points to the need for this court to ensure that disputes litigated before it are case‑managed to completion as soon as possible and that the parties' solicitors are held accountable to the court's milestones for entry to trial.
For these reasons the plaintiff's claim must be dismissed.