Kerle v BM Alliance Coal Operations Pty Limited - [2016] QSC 304

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

HAROLD FREDERICK KERLE
(Plaintiff)

v

BM ALLIANCE COAL OPERATIONS PTY LIMITED ACN 096 412 752
(First Defendant)

And

HMP CONSTRUCTIONS PTY LTD (IN LIQUIDATION) ACN 109 896 013
(Second Defendant)

And

AXIAL HR PTY LTD ACN 110 799 034
(Third Defendant)

FILE NO/S:

S528 of 2011

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

16 December 2016

DELIVERED AT:

Rockhampton

HEARING DATE:

5, 6, 7, 8 April and 19, 20, 21 July 2016

JUDGE:

McMeekin J

ORDER:

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.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff was employed as a dump truck operator at a mine – where the plaintiff was injured in a single vehicle accident on his commute home after four consecutive 12 hour night shifts – where the plaintiff suffered a significant brain injury – where the plaintiff claims damages against his employer, his host employer and the operator of the mine – where the plaintiff submits that the accident occurred because he was fatigued as a result of working four consecutive 12 hour night shifts – where damages have been agreed – whether fatigue was a significant contributing cause of the accident

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where there was no dispute that the employer and host employer owed the plaintiff a duty of care – where the plaintiff submitted the scope and duty owed to the plaintiff extends to taking reasonable steps to protect him after his roster has ended and hundreds of kilometres from his workplace – where the plaintiff submits the mine operator owed him a duty of care – where the mine operator denies that any duty of care was owed – whether the scope and duty owed to the plaintiff extends to taking reasonable steps to protect him after his roster has ended and hundreds of kilometres from his workplace – whether the mine operator owed the plaintiff a duty of care – whether that duty was personal and non delegable

TORTS – NEGLIGENCE – BREACH OF DUTY OF CARE – where the plaintiff submits the defendants breached their duty of care – where the plaintiff submits the defendants could have minimised the risk of injury to him by placing proper limits on the length of shifts, providing a bus service to transport workers, providing a place to rest after the last shift and providing an adequate program of education about fatigue and its risks – whether the defendants’ operations involved a risk of injury which was reasonably foreseeable – whether there were reasonably practicable means of obviating such risks – whether the plaintiff’s injury was caused by the risk in question – whether the proposed measures would have minimised the risk of injury sufficiently to avoid the accident – whether the failure of the defendants to eliminate the risk showed a want of reasonable care for the plaintiff’s safety – whether the plaintiff’s conduct in continuing to drive after a rest stop is a break in the chain of causation

TORTS – NEGLIGENCE – CONTRIBUTORY NELIGENCE – where the defendants claim the plaintiff was contributorily negligent by inter alia courting obvious risks in embarking upon the journey and failing to stop and sleep or rest – whether there should be an apportionment of liability made against the plaintiff for contributory negligence

TORTS – THE LAW OF TORTS GENERALLY – JOINT OR SEVERAL TORTFEASORS – CONTRIBUTION – where the mine operator seeks contribution from the host employer – where the host employer seeks an apportionment of liability between it and the mine operator and between it and the employer – where the employer seeks to apportion responsibility to the host employer – whether a finding of contribution or apportionment should be made

Civil Liability Act 2003 (Qld) s 5, 9 (1)(b)
Civil Liability Regulation 2003 (Qld)
Coal Mine Safety and Health Act 1999 (Qld) s 5, 6, 33, 34, 37, 38, 39, 41, 43, 47, 62
Coal Mining Safety and Health Regulation 2001 (Qld) s 42
Evidence Act 1977 (Qld) s 18, 101, 102
Law Reform Act 1995 (Qld) s 6, 7, 10
Workers Compensation & Rehabilitation Act 2003 (Qld), s 31, 32, 34, 35, 307
Workplace Health & Safety Act 1995 (Qld), s 28(3), 30(1)

COUNSEL:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, cited
Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243, cited
Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338, cited
Baker v Quantum Clothing Group Ltd [2011] 4 All ER 223, cited
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, cited
Barns v Parlin Pty Ltd [2010] WADC 92, cited
Barrett v Drake Personnel Limited Unreported, 20 April 1998, cited
BHP Billiton Ltd v Parker [2012] SASCFC 73, cited
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, cited
Bryan v Maloney (1995) 182 CLR 609, cited
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, considered
Cavanagh v Ulster Weaving Co Ltd [1960] AC 145, cited
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, considered
Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, cited
Deutz Australia Pty Ltd v Skilled Engineering Ltd & Anor [2001] VSC 194, cited
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, cited
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410, cited
Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177, cited
EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238, cited
Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] 1 VR 246, cited
Fennell v Supervision & Engineering Services Holdings Pty Ltd v Santos Ltd (1988) 47 SASR 6, cited
Fraser v Burswood Resort (Management) Ltd [2012] WADC 175, cited
General Cleaning Contractors v Christmas [1953] AC 180, cited
Gorris v Scott (1874) LR 9 Exch 125, cited
Green v Hanson Construction Tools Pty Ltd [2007] QCA 260, cited
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited
Harris v Woolworths Ltd [2010] NSWCA 312, cited
Hodge v CSR Limited [2010] NSWSC 27, cited
Hollis v Vabu Pty Ltd (2001) 207 CLR 21, cited
James Hardy and Coy Pty Ltd v Roberts (1999) 47 NSWLR 425, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273, considered
Kemp Meats Pty Ltd v Tompkins [2014] QCA, cited
Kim v Cole [2002] QCA 176, cited
Kondis v State Transport Authority (1984) 154 CLR 672, consider
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, cited
Kuhler v Inghams Enterprises Pty Limited [1997] QCA 386, cited
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, considered
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited
McKenzie v Vella’s Plant Hire Pty Ltd [2013] 1 Qd R 152, cited
McLean v Tedman (1984) 155 CLR 306, cited
Medlin v State Government Insurance Commission (1995) 182 CLR 1, cited
Morris v West Hartlepool Steam Navigation CoLtd [1956] AC 552, cited
Muller v Cherrie [2000] QSC 330, cited
Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, cited
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201, cited
Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, considered
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406, considered
Podrebersek v Australia Iron and Steel Pty Ltd (1985) 59 ALJR 492, cited
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, cited
Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268, cited
Queensland Corrective Services Commission v Gallagher [1998] QCA 426, cited
R v Lace [2001] QCA 255, cited
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, cited
Samways v WorkCover Queensland [2010] QSC 127, cited
Signet Engineering Pty Ltd v Melvan [2003] WASCA 313, cited
Simon-Beecroft v Proprietors “Top of the Mark” Building Units Plan No 3410 [1997] 2 Qd R 635, cited
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, considered
Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, cited
Stuart v Kirkland-Veenstra (2009) 237 CLR 215, cited
Sutherland Shire Council v Heyman (1985) 157 CLR 424, cited
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, cited
Tabet v Gett (2010) 240 CLR 537, cited
Thomas v Sydney Training & Employment Ltd [2002] NSWSC 970, cited
Thompson v Smiths Shiprepairers(North Shields) Ltd [1984] QB 405, considered
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234, cited
Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181, cited
Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31, cited
Tunney v Midland Railway Company (1866) LR 1 CP 291, cited
Turner v South Australia (1982) 56 ALJR 839, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422, cited
Voli v Inglewood Shire Council (1963) 110 CLR 74, cited
Vozza v Tooth & Co Ltd (1964) 112 CLR 316, cited
Wilkinson v BP Australia [2008] QSC 171, cited
Wyong Shire Council v Shirt (1980) 146 CLR 40, considered

G Diehm QC with A Luchich for the plaintiff
R Douglas QC for the first defendant
R Perry QC with J Rolls for the second defendant

R Treston QC with G O’Driscoll for the third defendant

SOLICITORS:

Rees R and Sydney Jones for the plaintiff
HWL Ebsworth for the first defendant
Barry Nilsson for the second defendant
BT Lawyers for the third defendant

INTRODUCTION

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.

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.

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.

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.
[1]I.e. Ignoring the WorkCover refund.

Assessment of Mr Kerle

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

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%

The accident

Mr Kerle has no memory of the accident or of events leading up to it.

In order to collide with the Armco rail beside the highway it was necessary for Mr Kerle’s vehicle to veer onto the right hand side of the road (ie the incorrect side of the road) given his direction of travel.

The speed limit in the area was 100 kilometres per hour. The road surface was sealed and dry. There is no evidence that there was any other vehicle in the vicinity of Mr Kerle’s vehicle. It was daylight. The visibility was good. The road was an undivided two lane highway. Nothing was found to explain a veering onto the incorrect side of the road, such as dead carcasses of animals or the like.

Alma Creek is located nearly 300kms from the Norwich Park Mine and about 125kms from the Dingo roadhouse where Mr Kerle had taken a break for around 30 minutes.

DID FATIGUE CAUSE THE ACCIDENT?

Mr Kerle says that his last reliable memory was as he left the mine site some three and a half hours before the accident. There is no direct evidence of what happened. Acceptance of his case therefore requires that an inference be drawn from the known circumstances that more probably than not fatigue was at least a contributing cause of the accident.

In my view that is shown to the necessary degree of proof. I take the test to be that laid down by Dixon CJ in Jones v Dunkel[2]:

“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”. But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd which is referred to in Holloway v McFeeters by Williams, Webb and Taylor JJ. The passage continues: “All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence.By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood .” But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”

[2](1959) 101 CLR 298 at 304-305 (my emphasis and footnotes deleted).

I appreciate that the passage is directed to the issue of causative negligence and that at this stage I am considering the factual underpinnings of the case, but in my view the passage is apposite. To the same effect is the decision in Tabet v Gett[3] cited by senior counsel for Mr Kerle and for BMA. Kiefel J (with the concurrence of Hayne, Crennan and Bell JJ) wrote:

“The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”

[3](2010) 240 CLR 537 at 578 [111] (again my emphasis and footnotes deleted).

In the normal course of human experience one could readily accept that a person who had just completed a 12 hour shift operating machinery at his workplace, as Mr Kerle had done, would be tired. Most of us are at the end of a working day. Consistently with that observation, in a survey conducted at the Norwich Park Mine in March 2008 nearly 70% of the workforce were dissatisfied with the proposition that “I rarely feel fatigued when doing my job”.[4] While different shifts were introduced by the time Mr Kerle came to work there[5] the response seems significant. The length of the shift ie the 12 hour shift, is associated with greater fatigue levels as well as increased risk of incidents of accidents and injury.[6] Professor Dawson commented that the working times at Norwich Park were “at the upper limit of what was generally considered acceptable.”[7]
[4]Ex 13 at p 26.
[5]T3-26/45.
[6]Ex 2 tab 54, p 14, section 4.6.
[7]Ex 2 tab 55A, p 7, para 2.6.1.

When one adds that Mr Kerle had worked a night shift – from 6pm to 6am - the probabilities of he being affected by tiredness amounting to fatigue increase. I use fatigue here in the sense of a diminished capacity to perform at a normal level and sufficient to impair one’s ability to function safely.[8]
[8]Ex 2 tab 54, p 15, section 4.7.

Add then that by the time of the accident there had been an extended period of wakefulness – the precise period is not known but not less than 17 hours and perhaps up to 19 hours if Mr Kerle’s evidence of when he awoke on the 29^th October is accepted. The accuracy of his recollections in a general sense is in doubt. But on any view, by 9.50am he had been awake a substantial time.

When one further adds that Mr Kerle had completed four successive such night shifts the odds of fatigue playing a part increase again. I speak here only of ordinary human experience. The expert evidence called from Professors Dawson and Rogers (both acknowledged experts in sleep and fatigue) supports that experience. Night shift disrupts the circadian rhythm and produces a high prospect of sleep debt potentially accumulating. That is what human beings commonly experience. Some can adjust and Mr Kerle had worked night shifts before, but many months before, and he was not at all accustomed to doing so by the day of this accident.

If there had been an accumulated sleep deficit then the consequences that Professor Rogers describes are of a type that can lead to a single vehicle accident – “decrements in vigilance; increased lapses of attention; increased reaction and response times; … involuntary microsleeps; … involuntary sleep attacks occur…”[9] Disruption to circadian rhythms produce a similar result.[10]
[9]Ex 2 tab 54, p 11, section 4.
[10]Ex 2 tab 54, p 13, section 4.4.

While the defendants were critical of Professor Rogers’ prospective risk analysis, and to the extent that it could be said to assess the subjective features of this case it obviously had significant limitations, her analysis was useful at least in showing that the objective and unchallenged facts potentially put Mr Kerle in the high risk fatigue grouping[11] – a view that Professor Dawson shared.[12]
[11]Ex 2 tab 54, p 14, section 4.6; p 20, section 4.11.
[12]T5-82/15-20.

Add to the foregoing that the act of driving itself causes fatigue. That is notorious in our community. Indeed signs have been erected on our highways for many years warning drivers that “fatigue kills”. Here Mr Kerle had driven for nearly two hours or thereabouts, had a 30 minute break at the Dingo roadhouse and then driven on for another hour or so – acknowledging that all times are merely approximates. While the break would help with any fatigue it was at least 45 minutes in the past by the time of the accident.

Add then that the road itself is a monotonous one. It is typical of country roads in Central Queensland. There are few features that call on the driver for any reaction. Traffic can be relatively sparse. So the stimuli that can keep drivers alert is, more often than not, absent. The relationship between serious road accidents, fatigue and rural roads is well recognised.[13]
[13]Ex 2 tab 54, p. 19, section 4.11.

Add then to the probabilities that there is no evident reason for the vehicle to have run onto the incorrect side of the road and into a guard rail. Various alternative possibilities were proffered by the defendants involving Mr Kerle being distracted within the vehicle (eg use of the mobile phone, changing radio stations, changing CDs) but his evidence of his habits and the phone records suggest that was highly unlikely. None were eventually pressed with any conviction as realistic possibilities.

No skid marks or the like consistent with heavy braking or hard swerving were found. No dead carcasses of marsupials, birds or reptiles were found in the vicinity of the accident site suggestive of a need to take sudden avoiding action.

I interpolate that even had there been a sudden appearance of some such animal the probabilities seem to favour a finding that, absent fatigue impacting on Mr Kerle’s ability to navigate such a hazard, which is not an uncommon one on country roads, one would expect him to do so safely. Mr Kerle was an experienced driver, 50 years of age at the time of the accident,[14] experienced on country roads which he had driven on all his adult life, and experienced with this road to a degree. Our highways are littered with such carcasses. Most drivers cope with such hazards when they occur without disastrous accidents.
[14]Born 8 August 1958 – now aged 58 years.

Other potential causes such as excessive speed seem an unlikely explanation. The accident occurred on a bend but it is a gentle one, easily navigated. The elapsed time of the journey and the distance covered suggests Mr Kerle drove within the speed limits, at least on average. His habit seems to have been not to speed. He had had only one traffic violation for excessive speed over the previous 20 years of driving.

Finally, as just mentioned, the accident occurred at a slight bend in the road that occurs at about that point. The striking of the guard rail from Mr Kerle’s direction of travel is consistent with Mr Kerle failing to take that bend safely. That is what a driver not alert to his driving (or indeed asleep) because of fatigue could well do.

Against that analysis are put two things - Mr Kerle’s own evidence that he was, as he recalls, alert and not at all tired when he left the mine site; and Professor Dawson’s view that the circumstances of this accident did not fit the classical fatigue induced accident scenario.

The first submission depends on the reliability of Mr Kerle’s memory and on his ability to appreciate his own level of fatigue. Several observations can be made.

First, how Mr Kerle felt three and a half hours before the accident is not necessarily germane to how tired he had become by the time of the accident.

Secondly, Mr Kerle’s evidence was against the probabilities and strongly so, if taken as applying at or shortly before 10am that morning. Mr Kerle in all probability did feel reasonably rested when he left his workplace. To attempt a five hour journey if feeling a level of fatigue likely to impact on one’s ability to drive safely would be foolhardy. Mr Kerle did not strike me as that sort of man. The real issue is the detail of the claim – that he was “not at all tired”. That sounds improbable coming from a man who had just finished a 12 hour shift and four consecutive night shifts.

Mr Kerle has admitted brain damage of uncertain degree as a result of the accident. No-one can say what impact this is having on his ability to re-call, but it clearly has caused amnesia to some extent.

Against that background Mr Kerle’s memory was shown not to be reliable. No-one suggests that he was dishonest but the defendants demonstrated with certainty that his recollections about his movements on the day before he started his four night shifts (ie 26 October) were plainly wrong. He thought that he arrived at his workplace at 3pm to start work at 6pm without having any significant chance to rest before hand, but the telephone records strongly indicate that he was at the mine site by 8am and he made no calls – consistent with him resting through the day - until 3pm or so given his use of his mobile phone at 3.30pm. Thus the reality is very different from his recollections.

Thirdly, the capacity for any individual to accurately assess their own level of fatigue is problematical. I will return to the issue.

The second submission tends to overstate the effect of Professor Dawson’s evidence. He expressed the view that this accident was not archetypal but explained his reasons for that in this passage in cross-examination:

“Bearing in mind, if you would, that the total elapsed time between the accident and when Mr Kerle left the mine site was about three and a-half hours, including the time of the break at the Dingo Roadhouse, in assessing the archetypal features, and in making the comparison that you do to the results of laboratory studies, it would be proper to take into account not just the time since the break at the Dingo Roadhouse, but the time total sent (sic) on this task of driving on the highway. Would you agree? --- I agree. But I would also say I was asked about the archetypal accident, not Mr Kerle’s individual circumstances. So with respect to that, most of the research literature shows that after a 30-minute break – in those circumstances you would have expected, from what we know and what the current recommendations for road safety are – is that most people are at much elevated level of risk post two hours or something approaching that. So it wasn’t archetypal in the sense that they’ve been driving for a long time. I am not arguing that the accident was not fatigue-related.

All right. And certainly from the point of view of these features – that is, all of the features that you’re aware of – the circumstances are consistent with a fatigue-related accident? --- With the exception of Mr Kerle’s evidence saying that he didn’t feel tired at the time, and our discussion about that yesterday, which is also relatively inconsistent. But I’m not passing judgment. I think if you ask me is the accident fatigue-related or not, I’m saying it’s in the grey zone. It may’ve been. There are some suggestions that it could be. There are some suggestions that say it might not be. That’s all.”[15]

[15]T6-19/24-36.

And in re-examination:

“What are the factors that suggest it was not? --- The factors in my mind are that evidence given by Mr Kerle, saying that he did not feel fatigued at the time. And I accept that there can be some limitations to that, post-accident. I think the circumstances of the accident and the time that it happened, the time on task that – when it happened are also grey. So I’m – when I look at this I say there are some factors that suggest that it may be fatigue-related; there are others that make me less convinced that it is. But I would be hard-pressed to be definitive one way or the other. It’s – as with many of these accidents, it’s in the grey zone.”[16]

[16]T6-21/21-28.

The reference to “the time that it happened” is a reference to the accident not occurring at the low point of the circadian rhythm of the general populace at around 2am – not necessarily the low point for Mr Kerle, which cannot be known.[17] And the reference to “time on task” I take to be a reference to the period driving and the evidence quoted that the studies suggest an “elevated level of risk post two hours or something approaching that”, the 30 minute break having interrupted that period of driving. But in assessing all the circumstances these are relatively minor points and in my view do not go near outweighing the factors I have referred to.
[17] See Professor Dawson’s opinion at Ex 2 tab 55, para 4.4(e).

In any case, that experts might assess the causal link as merely possible and not probable is not determinative: EMI (Australia) Ltd v Bes. [18] This is a question of fact, not one that experts can determine. And the expert evidence here is not to the effect described by Dixon J in Adelaide Stevedoring Co Ltd v Forst[19] that “the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.”
[18] [1970] 2 NSWLR 238.
[19] (1940) 64 CLR 538 at 569.

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.”
[20]Tabet v Gett (2010) 240 CLR 537 at 578 [111].

THE CIVIL LIABILITY ACT DOES NOT APPLY

There is an issue as to whether the provisions of the Civil Liability Act 2003 (Qld) (“the CLA”) apply to the claims against BMA and HMP. It is common ground that they do not apply to Axial due to the exemption in s 5 of the CLA. The issue turns on the width of that exemption.

It is necessary to consider both the construction of s 5 of the CLA and ss 34 and 35 of Workers Compensation & Rehabilitation Act 2003 (Qld) (“WCRA”). While I will address the issue I am not persuaded that it matters a great deal. Nothing seems to turn on the differences between the common law principles applicable to the determination of liability and the liability provisions of the CLA. Whether the necessary level of risk be not “far-fetched or fanciful” (Wyong Shire Council v Shirt[21]) or “not insignificant” (s 9(1)(b) CLA) that level of risk pertains. And I can see no difference in the result however the tests of causation be described.
[21](1980) 146 CLR 40 at 47-48 per Mason J.

Section 5 of the CLA,[22] so far as is relevant, provides:
[22]Reprint 2A.

Civil liability excluded from Act
(1) This Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes—
…
(b) an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies;
…

Sections 34(1)(c) and 35 of the WCRA,[23] again so far as relevant, provided at the relevant time:
[23]Reprint 3B.

34 Injury while at or after worker attends place of employment
(1) An injury to a worker is taken to arise out of, or in the course of, the worker’s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker’s employment—
…
(c) while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.

(2) For subsection (1)(c), employment need not be a significant contributing factor to the injury.

35 Other circumstances
(1) An injury to a worker is also[24] taken to arise out of, or in the course of, the worker’s employment if the event happens while the worker—
(a) is on a journey between the worker’s home and place of employment;

…
(2) For subsection (1), employment need not be a significant contributing factor to the injury.

[24]Mr Diehm’s emphasis.

“Event” for present purposes is defined in s 31(1) of the WCRA to mean “anything that results in injury”.

Section 34(1)(c) does not apply to the facts here. On its face s 35 does apply – Mr Kerle was injured “on a journey between the worker’s home and place of employment”. Thus prima facie the CLA applies as it falls within the exception to the exclusion provided for in s 5. Senior counsel for Mr Kerle, Mr Diehm of Queens Counsel, submitted, in effect, that to adopt that prima facie view would be to take a too shallow an approach to the purpose behind s 5 of the CLA. He submitted that on a proper understanding of the effect of these provisions in the WCRA, and in order to give appropriate significance to the word “also” in s 35(1), the legislative intention was that the CLA not apply in the circumstances here.

The WCRA is concerned with regulating the payment of compensation and damages to a worker (or their dependents) who suffers an “injury”. But the injuries referred to are not at large - in order to qualify for compensation under the WCRA (and damages claims are caught as well) it is a necessary pre-condition that the injury the subject of the claim satisfy the definition of “injury” in the WCRA. Section 32 sets out the limits to the concept of “injury”. It provided:

32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies.

The common link between s 34(1)(c) and s 35, the two sections mentioned in s 5(1)(b), is that for the purposes of the payment of compensation under the WCRA the condition otherwise necessary to bring an injury within the ambit of the WCRA mentioned in s 32(1) – that the employment is a significant contributing factor to the injury – is expressly discarded. Their purpose is to ensure that the right to compensation is extended to injuries beyond the restriction imposed by s 32. Evidently the legislature did not want the exemption from the provisions of the CLA to so extend. In other words employment must be a significant contributing factor to the injury the subject of the proceedings to come within the exemption.

Mr Diehm’s point is that here the relevant “event”, that is the thing that resulted in Mr Kerle’s injury, were acts and omissions that relate to the workplace. He submits that for the plaintiff to succeed to an award of damages it is necessary that there be a finding that Mr Kerle’s injury does satisfy the s 32(1) definition. His case is that employment is not only a significant contributing factor to the injury suffered but the principal one.

The issue, again involving a motor vehicle accident away from the workplace but in a different factual context, came before the Court of Appeal in Newberry v Suncorp Metway Insurance Limited.[25] There Keane JA (as his Honour then was) in delivering the judgment of the Court (de Jersey CJ and Muir J agreeing) said:

“In short, s. 5(b) excludes from the scope of the CLA claims which involve the assertion that the personal injury caused by the breach of duty by a non-employer occurred in circumstances where the claimant’s employment activities nevertheless also contributed to the occurrence of that injury in a way which is significant. Whether the contribution of the employment activities was, or was not significant, involves a consideration of issues of causation and causal potency in the relationship between the breach of duty and the employment activities. These issues simply do not arise in the context of a determination of the simpler issue whether an injury falls within s. 32 of the WCRA. On this view, if a claim for damages for breach of duty against a person other than an employer is to be excluded from the purview of the CLA by s. 5(b), the claim must be 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.”[26]

[25][2006] 1 Qd R 519.

[26]Ibid at 529 [24] (my emphasis).

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]
[27]Ibid at 527 [17].

In my view s 5 of the CLA has the effect of excluding this claim from the operation of the CLA.

THERE IS NO PRIVATE RIGHT OF ACTION AVAILABLE FOR BREACH OF STATUTORY DUTIES

Mr Kerle contends that a private right of action is available for breach of statutory duties.

Safety on coal mine sites has long been the subject of statutory controls and the risks specific to fatigue have been the subject of express provision. The relevant statute is the Coal Mining Safety and Health Act 1999 (Qld) (“CMSHA”) and the regulations made pursuant to that Act – the Coal Mining Safety and Health Regulation 2001 (Qld) (“the Regulations”). The obligations thereby imposed are relevant both to informing any duty owed at common law and to determine whether any private right of action arises.

The Statutory Provisions

It is not contentious that s 34 of the CMSHA imposed on each of the defendants obligations pursuant to Division 3 of that Act. BMA was the “coal mine operator”, HMP was a “contractor”, and Axial was a “person who supplies a service at a coal mine” as each of those terms were defined in s 33 of the CMHSA. A breach of the obligation imposed by s 34 could result in a fine or imprisonment.

In determining the width of those obligations I note that the CMSHA is said to apply to “(a) everyone who may affect the safety or health of persons while the persons are at a coal mine; and (b) everyone who may affect the safety or health of persons as a result of coal mining operations; and (c) a person whose safety or health may be affected while at a coal mine or as a result of coal mining operations”: s 5 (my emphasis).

I note also that the objects of the CMSHA are similarly described – they include protecting the safety and health of “persons at coal mines” and “persons who may be affected by coal mining operations”; and requiring that the risk of injury or illness to any person “resulting from coal mining operations” be at an acceptable level: s 6 (my emphasis).

The obligations imposed on each of the defendants is different.

BMA’s statutory obligations are set out in s 41(1):

41 Obligations of coal mine operators
(1) A coal mine operator for a coal mine has the following obligations—
(a) to ensure the risk to coal mine workers while at the operator’s mine is at an acceptable level, including, for example, by providing and maintaining a place of work and plant in a safe state;

(b) to ensure the operator’s own safety and health and the safety and health of others is not affected by the way the operator conducts coal mining operations;
(c) not to carry out an activity at the coal mine that creates a risk to a person on an adjacent or overlapping petroleum authority if the risk is higher than an acceptable level of risk under the Petroleum and Gas (Production and Safety) Act 2004;
(d) to appoint a site senior executive for the mine;
(e) to ensure the site senior executive for the mine—
(i) develops and implements a safety and health management system for the mine; and
(ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine;

(f) to audit and review the effectiveness and implementation of the safety and health management system to ensure the risk to persons from coal mining operations is at an acceptable level;
(g) to provide adequate resources to ensure the effectiveness and implementation of the safety and health management system.

HMP’s obligations are found in s 43:

43 Obligations of contractors
A contractor at a coal mine has an obligation to ensure, to the extent that they relate to the work undertaken by the contractor, that provisions of this Act and any applicable safety and health management system are complied with.

Axial’s obligations are set out in s 47:

47 Obligation of provider of services at coal mines
A person who provides a service at a coal mine has the following obligations—
(a) to ensure the safety and health of coal mine workers or other persons is not adversely affected as a result of the service provided;
(b) to ensure the fitness for use of plant at the coal mine is not adversely affected by the service provided.

The phrase “safety and health” is defined in s 11 of the CMHSA. It provides that a person’s safety and health is the person’s safety and health “to the extent that it is or may be affected by coal mining operations or other activities at a coal mine”.

Section 37 of the CMSHA provides how an obligation imposed by the Act may be discharged. It relevantly provides:

37 How obligation can be discharged if regulation or recognised standard made

(1) If a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligation in relation to the risk only by following the prescribed way.

The balance of s 37 (ss 37(2) and 37(3)) deal with recognised standards. No recognised standard was proved. It is arguable that a regulation does prescribe a way of achieving an acceptable level of risk in relation to fatigue management as there is express provision in s 42 of the Regulations dealing with the matter. The difficulty with the argument is that s 42 does not prescribe anything but leaves it to the site senior executive to work things out with a cross-section of the workforce. I will turn to that provision in a moment. If there is no prescription by regulation then s 38 of the CMSHA becomes relevant. It provides:

38 How obligations can be discharged if no regulation or recognised standard made

(1) This section applies if there is no regulation or recognised standard prescribing or stating a way to discharge the person’s safety and health obligation in relation to a risk.

(2) The person may choose an appropriate way to discharge the person’s safety and health obligation in relation to the risk.

(3) However, the person discharges the person’s safety and health obligation in relation to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.

The concepts of “risk” and “hazard” are defined in the CMSHA. Section 18 provides:

18 Meaning of risk

(1) Risk means the risk of injury or illness to a person arising out of a hazard.

(2) Risk is measured in terms of consequences and likelihood.

And Section 19 CMSHA provides:

19 Meaning of hazard

A hazard is a thing or a situation with potential to cause injury or illness to a person.”

The provisions specific to fatigue appear in the Regulation which provides in s 42:

42 Safety and health management system for personal fatigue and other physical and psychological impairment, and drugs
(1) A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the following—
(a) personal fatigue;
(b) other physical or psychological impairment;
Example of other physical or psychological impairment—
an impairment caused by stress or illness
(c) the improper use of drugs.

(2) The system must provide for the following about personal fatigue for persons at the mine—
(a) an education program;
(b) an employee assistance program;
(c) the maximum number of hours for a working shift;
(d) the number and length of rest breaks in a shift;
(e) the maximum number of hours to be worked in a week or roster cycle.
…

(5) The site senior executive must consult with a cross-section of workers at the mine in developing the fitness provisions.
(6) In developing the fitness provisions, the site senior executive must comply with section 10, other than section 10(1)(a) and (d)(ii)(C), as if a reference in the section to a standard operating procedure were a reference to the fitness provisions.
(6A) If the fitness provisions provide for the assessment of workers for a matter mentioned in subsection (1)(a) or (b), the site senior executive must establish the criteria for the assessment in agreement with a majority of workers at the mine.
…
(8) In this section—
fitness provisions means the part of the safety and health management system that provides for the things mentioned in subsections (2) to (4).

Section 42 appears in Part 6 (headed “Fitness for work”) of Chapter 2 (headed “All coal mines”) of the Regulation.

Discussion

The fundamental difficulty with the argument that the statute imposes obligations giving rise to a private right of action actionable at the suit of the plaintiff here is that the legislation is not concerned with hazards off the mine site but rather on it.

The natural meaning of the language used in s 5 and s 6 which I have emphasised above does not easily encompass the risk identified here. Nor do the phrases that define the relevant hazards in s 41(1)(a), (b), (c), (e)(ii) and (f) – “while at the operator’s mine”, “conducts coal mining operations”, “not to carry out an activity at the coal mine”, “helps ensure the safety and health of persons at the mine”, “from coal mining operations”. The obligations under s 43 and 47 are also restricted to the “work undertaken” or the “service provided” respectively. Neither readily encompasses the risks inherent in the drive home from work. That approach to the legislation is reinforced when regard is had to the express reference in s 41(1)(c) to “adjacent or overlapping petroleum authority”. Why expressly refer to an off-site hazard if the other provisions such as s 41(1)(b) are all encompassing?

Mr Kerle’s safety and health was not affected while he was at the mine. Nor was it affected “by coal mining operations or other activities at a coal mine” as s 11 requires. His safety and health were affected by what he did at the mine – that is by working consecutive night shifts contributing to his fatigue. But it is stretching the language to say that “coal mining operations or other activities” per se impacted on his health or safety. To say that the injury Mr Kerle suffered was “as a result of coal mining operations” or “from coal mining operations” is to put almost no limit on the consequences of those operations.

With respect to s 42 of the Regulations - it is legitimate to read the heading of a section as giving an indication of the intended meaning of a legislative provision.[28] The heading of the only provision relating to fatigue is “Fitness for work”, not fitness for some other purpose such as the drive home.
[28]Acts Interpretation Act 1954 (Qld) s 35C(1).

It is well established that breach of a legislative provision intended to achieve one purpose cannot be called in aid as justifying an award of damages for harm from a different source. Gorris v Scott[29] is a well-known authority to that effect. In Masterwood Pty Ltd v Far North Queensland Electricity Board (No 2) McPherson JA identified the ratio of that decision as: “The loss sustained was not within the scope of the risk contemplated or provided for by the statute.” [30] So here.
[29](1874) LR 9 Exch 125.
[30][2000] 1 Qd R 253 at 259 [8].

In case I am wrong in that view I will go on to consider the issue of whether the legislation affords a private right of action assuming it covers the activity of driving home.

Whether provisions such as these dealing with workplace health and safety give rise to a private right of action has proved a vexed question. My attention was not drawn to any decided case in which the issue has been resolved in respect of this legislation. In the absence of any express provision – and there is none in the legislation here – the conferring of a private right of action for breach of the obligations imposed by the Act is a matter of inference. The general principles underlying the issue here were explained by Dixon J in O’Connor v S P Bray Ltd.[31] The application of those principles has proved difficult even in the context of employee safety which is generally taken to be in a special category. The authorities on the inferences to be drawn from the provisions of the various guises of the workplace health & safety legislation in Queensland are conflicting: see 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] and Henderson v Dalrymple Bay Coal Terminal;[37] and my own decision of Wilkinson v BP Australia Pty Ltd.[38]
[31] (1937) 56 CLR 464, 477-478.
[32] [2001] 1 Qd R 518.
[33] [2002] 1 Qd R 622.
[34] [2002] 1 Qd R 630.
[35] [2003] QCA 572.
[36] [2000] 2 Qd R 23.
[37] [2005] QCA 355.
[38][2008] QSC 171.

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.

The obligations imposed by the regulation might well assist the plaintiff in his proof of what was practicable and so afford evidence that assists in his case on breach of the common law duty (and breach of contract vis-à-vis Axial). However, in my view, a breach of the provisions does not provide any private right of action.

THE RISK OF INJURY

Before turning to the duty of care issue it is necessary to say something about the risk in question here.

Many might say that the risk of falling asleep at the wheel, or of fatigue impacting on one’s ability to drive safely, is a hazard that not only is well understood and appreciated in our community but one that the individual concerned is in the best position to assess and guard against. To require then that employers, or host employers, or those who conduct mines, ought to be proactive in meeting the risk, it might be said, is to place an unreasonable and unnecessary burden on them.

I am reminded of the observations of Kitto J in Electric Power Transmission Pty Ltd v Cuiuli[39] where the worker had suffered an injury to his eye when cutting up bush timber with a tomahawk:“…but when I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so.”
[39](1961) 104 CLR 177 at 180-181.

So it may be argued here in relation to explaining to a worker how to care for his own safety in driving home on a public highway. However I reject that view. The fallacy in applying such reasoning here lies in the assumption that the risks are equally obvious to all.

As senior counsel for Mr Kerle points out in his submissions, neither BMA nor HMP argue that the subjective appreciation of fatigue by the individual worker provided a reliable yardstick for controlling the risk of injury.[40]
[40]Ex 41 at para 108 and see para 12A HMP Defence and para 13A BMA Defence.

That that concession was rightly made is evident from the expert evidence led at trial. There are three relevant observations. The first is that the full impact of fatigue is not well understood. The second lies in the fact that the fatigue produced by successive shifts, particularly night shifts involving the disruption of both the circadian rhythm and the “sleep-wake systems” spoken of by the experts called in the case, is not fully appreciated by the average lay person. The third is that individuals do not necessarily recognise when they are fatigued.

As to the first point, the impact of fatigue on road safety is quite marked. Professor Rogers provided statistics on the incidence of fatigue in motor vehicle accidents. She referred to the Australian Transport Safety Bureau report of 1998 that 16.6% of fatal road accidents and 19.6% of road fatalities were fatigue related. A 2005 report indicated that the risk of dying on rural roads from a fatigue related crash is 13.5 times higher than in urban areas.[41] While any reasonably informed citizen is aware that fatigue can lead to road accidents, I at least, was not aware that the incidence was so high.
[41]Ex 2 tab 54, p 19, section 4.11.

As to the second point the rotating shift system used here meant that with four successive night shifts the worker does not have time to adapt to the disruption to circadian rhythms[42] and there is a likelihood of those shifts leading to accumulated sleep debt.[43] Added to the risks associated with shift work are the risks associated with working long shifts – here 12 hour shifts. As Professor Rogers explained, that in itself is associated with an increase in fatigue levels.[44] I have referred already to some of the effects of accumulated sleep deficit.[45] A significant effect is that of micro sleeps and involuntary sleep.
[42]Ex 2 tab 54, p 36, section 6.2.
[43]Ex 2 tab 54, p 37, section 6.2.
[44]Ex 2 tab 54, p 37, section 6.2.
[45]At [18].

As to the third point Professor Rogers pointed out in a file note made by solicitors but effectively her supplementary report:
“… if a person has chronic and/or acute sleep deprivation they tend to lose the ability to be self-aware of that fact. She said there is a real disconnect in those circumstances between what level the person thinks they are operating at and what they are in truth operating at as well as an underestimation of subjective assessments of fatigue. That is accompanied by an overestimation of the ability to do tasks. This impacts on a persons ability to do things like risk assessments i.e. assessing how fatigued they are and what risks exist.”[46]
[46]Ex 2 tab 54, p 72-73.
I am conscious that the foregoing opinion was expressed in contradistinction to Professor Dawson’s views that the “likelihood of a person falling asleep without an awareness of increased sleepiness, reduced alertness, yawning or struggling to stay awake etc is almost zero… it is probably less than 1%”.[47] The experts I think are talking about two different things. But the inability to necessarily accurately judge one’s level of fatigue seems well established in the literature that Professor Rogers referred to and indeed accepted by Professor Dawson in his oral evidence.[48]
[47]Ex 2 tab 55, p 9, para 4.7.
[48]T5-92/30 – 93/30.

These issues go to the vulnerability of someone such as Mr Kerle and are fundamental to the arguments in the case.

DUTY

Scope and Content of the Duty of Care – Axial & HMP

In what follows I am cognisant of the fact that an employer, or those in a like position, is not an insurer of a worker’s safety. The duty is to take reasonable care: Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury 2nd ed, 1979, p 61, and many authorities to the like effect.

It is necessary to address the scope and content of the duty contended for at common law (and in Axial’s case also under contract). In doing so I bear in mind the observations of French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd[49] of the “inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content.”[50] Whether a duty is owed at all and the scope and content of it are to be “determined by considering reasonable foreseeability and the ‘salient features’ of the relationship between the plaintiff and defendant.”[51] Their Honour’s concluded with an observation pertinent here:

“But where the relationship falls outside of a recognised relationship giving rise to a duty of care, or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term ‘reasonable’ and hence the content of the duty of care. These are matters essential for the determination of this case, for without them the issue of breach cannot be decided. The appropriate level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the case.”[52]

[49](2011) 243 CLR 361.

[50]Ibid at 370 [19].

[51]Ibid at 371 [20].

[52]Ibid at 371, 372 [22] (citation of authorities omitted – my emphasis).

The plaintiff effectively contends for a duty in these terms: a duty to take reasonable care to avoid or minimise the risk of injury to a worker resulting from foreseeable fatigue consequent upon the worker engaging in four consecutive 12 hour night shifts and then undertaking long distance commuting to his home. The defendants each contend that no such duty was owed.

In my view such a duty was owed. I acknowledge that, so expressed, the level of abstraction is not informative of the content of the duty. The plaintiff’s contention is that there were four specific measures that ought to have been adopted – control shift lengths, provide a place to rest, provide suitable advice and warning of the risks, and provide a bus service. I will deal with each proposal later when I consider the question of breach.

I appreciate too that this risk was not the only risk that Axial, HMP and, as will be seen, BMA had to contend with and that it is necessary to look prospectively at the risks, not with the benefit of hindsight and the knowledge that the risk of injury has here come to pass.[53] But complaint can hardly legitimately be made by the defendants that this is too narrow a focus given the statutory reference to fatigue as a relevant issue that I have dealt with above and the comprehensive treatment of the issue in BMA’s safety policies to which I will come.
[53] See generally the cautionary comments of French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 370-371.

Those policies have come about for good reason. The way in which mining work is carried out has undergone somewhat of a transformation in more recent years. Speaking generally, in the 20^th century the mining workforce was housed in locations not so distant from the mines. On occasions towns were built in relatively close proximity to mines to accommodate miners and their families. Or miners lived on camps adjacent. When that was so the working of night shifts and the impact of fatigue was not so much of a concern. But with the opening of mines not so located the concept of long distance commuting from home to mine became more common. Motor vehicle accidents whilst undertaking long distance commuting from remote mine sites after completing successive night shifts became a matter of concern. There have been fatalities in such accidents. A coroner’s inquest in Queensland into three such deaths in 2005 and 2007 identified fatigue as a potential cause.[54]
[54] Inquest into the deaths of Malcolm Mackenzie, Graham Peter Brown and Robert Wilson – delivered 23/02/11– Coroner Hennessy.

But this is to say little more than that the risk of injury was foreseeable and indeed foreseen. Foreseeability of injury alone is never enough to result in the imposition of such a duty to care for others although it is a necessary starting point: Bryan v Maloney.[55]
[55](1995) 182 CLR 609 at 617-618, 634.

The problem is particularly acute where the argument is not that the defendant harmed the plaintiff by some positive action but that the defendant is liable for the harm that befell the plaintiff because of an omission to act. The common law is traditionally reluctant to impose a duty to act to save another from harm. McHugh J discussed the point in Pyrenees Shire Council v Day:[56]

“Absent consideration or its equivalent, the common law generally imposed no obligation on a person to protect or help another. As Windeyer J pointed out in Hargrave v Goldman, 'the common law does not require a man to act as the Samaritan did'. For that reason in most cases, the occupier of property owes no duty to a neighbour to secure the property so as to prevent thieves gaining access to the property for the purpose of robbing the neighbour's premises. The 'general rule' said Dixon J in Smith v Leurs, 'is that one man is under no duty of controlling another man to prevent his doing damage to a third'. Nor does the common law generally impose any duty on a person to take steps to prevent harm, even very serious harm, befalling another. ... The careless or malevolent person, who stands mute and still while another heads for disaster, generally incurs no liability for the damage that the latter suffers. Harsh though the common law may seem to be, there are nevertheless strong political, moral and economic arguments that justify its approach, as Lord Hoffmann pointed out in Stovin v Wise.

In the absence of a contract, fiduciary relationship or statutory obligation, the common law makes a person liable in damages for the failure to act only when some special relationship exists between the person harmed and the person who fails to act. By a person's failure to act, I mean that person's failure to act divorced from positive conduct by that person that causes damage such as the failure to brake while driving a car. A special relationship may arise from the ownership, occupation or control of land or chattels, from the receipt of a benefit or from an undertaking, assumption of responsibility or invitation which might induce the person harmed to act or to refrain from acting."

[56](1998) 192 CLR 330 at 368-369 [101]-[102] (citations omitted).

However that reluctance in cases of omission does not apply with so much force where it is the defendant who has created the risk. As Heydon JA said in Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia,[57] after referring to the above passage in Pyrenees Shire Council v Day:

“To be rendered liable for having created a source of danger, of course, is to be rendered liable for more than mere inaction. Indeed the category of ‘special circumstances’ or ‘a special relationship’ can obviously overlap with cases where liability is found because of ‘a high degree of certainty that harm will follow from lack of action’.”

[57][2001] NSWCA 243 at [66].

The relationship between each of the defendants and the plaintiff arises in one way or another out of his employment at the Norwich Park Mine. If there is to be such a duty imposed it can only arise out of that relationship. The issue here is whether the scope of the duty undoubtedly owed by the employer or host employer can extend to protect workers from injury sustained hundreds of kilometres from the workplace and hours after any work task has ended. Does the traditional employment relationship, and the duties consequent upon it, justify the imposition as an incremental addition?

The employer’s duty is often described in terms that limit the obligations owed to meeting the dangers involved in the tasks undertaken – for example see Vozza v Tooth & Co Ltd[58] per Windeyer J. But it is not always so limited. It is sometimes described as extending to not exposing employees to “unnecessary risks of injury” – for example see Crimmins v Stevedoring Industry Finance Committee[59] per Hayne J echoing what was said 40 years before in Hamilton v Nuroof (WA) Pty Ltd.[60] A succinct statement appears in Czatyrko v Edith Cowan University[61] where the Court described the duty as follows (citations omitted):

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”

[58] (1964) 112 CLR 316 at 319.

[59](1999) 200 CLR 1 at 98 [276].

[60](1956) 96 CLR 18 at 25.

[61](2005) 214 ALR 349 at 353 [12].

A submission made on behalf of HMP[62] is that, whatever its duty, it can extend no further than relating to tasks undertaken “in the course of his employment” citing the judgment of Kitto J in ACI Metal Stamping & Spinning Pty Ltd v Boczulik[63] when referring to the employer’s duty:

“It may exist (though what is required for its performance may be very little) even in a case where the servant is exercising his right as a member of the public to pass along a public highway, for he may be performing an errand for his master or travelling to or from his place of work in a manner provided for by an express or implied term of the contract of employment. On the other hand it is clear that where the servant is using the highway simply as a means of getting to or from his place of work in such circumstances that the journey is either preliminary or subsequent to, and not in the course of, the employment, the master, as such, owes him no duty of care. The point to be observed is that the question upon which the existence of the duty depends is not in what character has the servant the right of passage, but whether the master is master in relation to the journey.”[64]

[62]Ex 38, para 155.

[63](1964) 110 CLR 372.

[64]Ibid at 379.

HMP submitted that this accident had no relation to any employment task, and did not happen in the course of Mr Kerle’s employment, and so the duty cannot extend so far.[65] Axial takes a similar position.[66] I think that it is evident that Kitto J did not have the present factual circumstances in mind in making the observation relied on. Indeed his remark is entirely conventional.
[65]Ex 38, para 156.
[66] Amended Defence of the Third Defendant to the Third Further Amended Statement of Claim para 7.

Nonetheless I think it is true to say that for a duty to be owed in the character of employer, or the like, as the plaintiff contends for, it is necessary that there be an extension of the recognised limits on the duty as it is usually described. I think the extension is warranted here, being both incremental and logical.[67] It is also consistent with what authority there is. The duty postulated by the plaintiff has been advanced in cases over the years: Kuhler v Inghams Enterprises Pty Limited[68]; Thomas v Sydney Training & Employment Ltd[69]; Fraser v Burswood Resort (Management) Ltd[70]. The plaintiff failed in each case but not on the ground that the duty contended for could not go so far. In Fraser the duty was found to be limited to a duty to warn of the risks. For present purposes Kuhler is of particular significance – a decision of the Queensland Court of Appeal and a strong court[71] – not so much in what was said but what was not said. If the duty contended for was untenable it is odd that no judge thought to mention that.
[67]See Brennan J’s comments in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481.
[68][1997] QCA 386.
[69][2002] NSWSC 970.
[70][2012] WADC 175.
[71]McPherson, Davies JJA, Derrington J.

It has long been recognised that an employer’s duty can extend beyond the workplace. However the cases that have previously so decided have depended on some aspect of the employment relationship that cannot be said to be present here.

Tunney v Midland Railway Company[72] is an early example. There a worker was injured when a train in which he was travelling home from work collided with another train. It was held that the accident occurred because of the negligence of a fellow worker in moving the points on the tracks. The doctrine of common employment resulted in the injured worker being denied relief. For present purposes the relevant point is that the character of employment was not lost because the work had ended for the day, nor because the injury occurred at a place distant from the worksite. However there the contract expressly provided for the provision of travel by train ie travel by train was provided as an incident of the employment. That distinguishes that case from this one.
[72](1866) LR 1 CP 291.

Jury v Commissioner for Railways (NSW)[73] provides another example. There a worker was killed by a passing train at night on land remote from his worksite and long after work had finished. He had come from his campsite, which had been provided by his employer. The campsite was adjacent to the railway line. The employer controlled both the campsite and the adjacent land on which the railway line was located. The workers were in the habit of walking on the land on which the railway line was located in getting to and from a nearby town. It was argued that the liability of the employer lay in failing “to provide for the safe passing of the said employees over the said land, and to light the said land in proper places and in sufficient manner for the use of the said employees during the hours of darkness.”[74]
[73](1935) 53 CLR 273.
[74] Ibid at 280.

Rich and Dixon JJ described the relevant relationship in these words:

“It thus appears that the Commissioner accommodated the men with a camp as a condition of the employment. No doubt the men were not obliged to live in it, and when living in it had complete liberty of action outside hours of labour. But it remains true that in camping the men on railway premises, the Commissioner was acting under the contract of service, and in dwelling there the deceased was responding to the demands of the employment.”[75]

[75] Ibid.

They concluded:

“A wide view has always been taken of the activities or matters to which the character of employee extends. Whenever the employee is upon the employer's premises in connection with or in furtherance of his employment, he goes there in that character. The result has often been that liabilities which his employer would otherwise incur to him have been destroyed by the doctrine of common employment — see Tunney v Midland Company, Coldrick v Partridge. If he had used a facility provided by his master to bring him to work, should he choose to avail himself of it, the fellow-servant doctrine applied. When that doctrine is abolished, the increase in the responsibility of the employer to his servant converts the wide application of that character into a benefit to the servant.

The consequence in the present case is that, in providing a camp on his premises for the deceased to inhabit in his character of employee, the Commissioner incurred to the deceased a duty of reasonable care for his safety. It was incumbent upon him to take all reasonable precautions in providing a place for a camp, including approaches and means of access.”[76]

[76] Ibid at 282-283 (citation ommitted).

Again, the provision of the camp in that location was an incident of the employment. Of present interest is their Honour’s comment that “in dwelling there the deceased was responding to the demands of his employment.” In travelling long distances to and from his home to the workplace so, in a sense, was Mr Kerle.

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.

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.
[77](1964) 110 CLR 372.

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.

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.

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.
[78]Ex 13 at p 12.

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.
[79] Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243 at [66].

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]
[80]TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 at 9 per Mason P.
[81]Ibid.
[82]Ibid at 10-13 [46]-[53].
[83]Ibid at 30 [176]-[178].
[84] The second defendant’s submissions assumed that the decision in Christie was to the contrary: see para 144 of Ex 38. The submission is wrong.

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

Axial submits that because of the transfer of the plaintiff’s services from Axial to HMP, and HMP’s effective control and supervision of the plaintiff, HMP became the employer pro hac vice of the plaintiff. Axial referred to Barrett v Drake Personnel Limited,[85] an unreported decision of the District Court, and Deutz Australia Pty Ltd v Skilled Engineering Ltd,[86] a single Judge decision of the Victorian Supreme Court.
[85]Unreported, McLauchlan DCJ, 20 April 1998.
[86][2001] VSC 194.

It is clear that the onus lies on the employer to show the transfer of services and that the “burden is a heavy one and can only be discharged in quite exceptional circumstances”: Mersey Docks Harbour Board v Coggins & Griffiths (Liverpool) Ltd per Lord Simon.[87] Lord Porter in that case said that it could only be proved when the “entire and absolute control over the workman had passed”.
[87][1947] AC 1.

Mason P rejected the argument when advanced by the labour hire company, Manpower, in TNT Australia Pty Ltd v Christie[88] in these terms:
[88][2003] NSWCA 47 at 15 [64-67].

“I would reject this submission. It is contrary to authority, in that Kondis and the cases that follow it proceed on the basis that the employment relationship creates the relevant non-delegable duty.

On analysis, Manpower's submission boils down to the fallacious argument that the non-delegable duty can be delegated by abdication.

Manpower's concession (properly made) that it was and remained the plaintiff's employer and the facts showing a continuing relationship of that nature negated the possible application of the qualification described by Gibbs CJ in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd:

Where the services of the servant of one employer are temporarily used by another, both employers will not be liable; prima facie the liability will usually remain with the general employer who may, however, `show, if he can that he has for a particular purpose or on a particular occasion temporarily transferred the services of one of his general servants to another party so as to constitute him pro hac vice the servant of that other party with consequent liability for his negligent acts': Mersey Docks and Harbourboard v Coggins and Griffith (Liverpool) Ltd at 13.

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. (Footnotes omitted)”

With respect I agree with those views and think they are applicable here. In my view it is clear that the “entire and absolute control over the workman” had not passed from Axial to HMP. As HMP submits there is compelling evidence of the continuation of the relationship of employment between Axial and Mr Kerle. Certainly Mrs Rogers thought so. She apparently was the main point of contact.[89] Axial required by its offer of employment that Mr Kerle report to both a site supervisor of HMP and an Axial supervisor and provided the contact details of both.[90] One of the conditions of employment was that the employee contact an Axial supervisor if they were unable to work on any day or if any accident or injury occurred. Axial’s handbook included “at any time you are employed by Axial and living on site or at accommodation provided by us or our client, you are required to abide by our code of conduct at all times, not just during work hours” and “it is the policy of Axial to monitor and control the fatigue levels of employees at work, particularly when working extended hours”.[91]
[89]T6-39/15-16.
[90]Ex 2 tab 21.
[91]Ex tab 16, p 13 and 25.

(l)having recognised the nature and extent of the risk which is alleged to have materialised in the accident, continuing the journey without adopting one or more of the precautions identified herein.

In addition to its arguments under the general law Axial points out that s 307 of the WCRA applied. It was submitted that Mr Kerle:

(a) failed to comply with an instruction by his employer for his health and safety: s.307(1)(a);

(b) failed to use something designed to reduce his exposure to the risk of injury, namely the permanent room available to him: s.307(1)(c);

(c) ought to be found guilty of substantial contributory negligence having regard to the broad discretion to make such a finding: s.307(2).

Counsel for the plaintiff submits that the contention that the plaintiff failed to take reasonable care for his own safety should be rejected and no finding of contributory negligence should be made. It was submitted:

(a)The plaintiff did all that could reasonably be expected of him in circumstances where he did not receive adequate training and instruction about the issue of fatigue and how to properly manage the risks associated with it;
(b)The failure to provide the plaintiff with adequate training and instruction on this issue meant he was not in a position to properly assess for himself whether he needed to do anything differently to what he did do on the morning in question;
(c)The plaintiff was not aware, because he had never been told by the defendants, that he was able to utilise a room at the MAC camp before his journey home;
(d)There was no other arrangement the plaintiff could make to return home, but to drive his vehicle. There was no bus of the kind that the plaintiff’s wife utilised in 2009;
(e)There is no evidence to suggest the plaintiff could actually have “car pooled” with any other worker at the mine. Who it is that BMA contends the Plaintiff should have shared his journey with rather than travelling alone is not clear;
(f)The plaintiff did in fact stop at the Dingo Roadhouse for a period. It was reasonable of him to do so. He likely would have stopped again at Dululu to “stretch his legs”. That would have been reasonable given his lack of education and training about the ineffectiveness of such action;
(g)It should be inferred that the plaintiff did not subjectively appreciate the extent of his fatigue and his impairment. The plaintiff was an experienced driver of country roads over long distances. He had an occasion once before to pull over and sleep when he felt tired. He would have done so here had he appreciated his state;
(h)The evidence shows that persons in this position may not appreciate the extent of their fatigue and impairment and misjudge their ability to drive. The evidence supports a finding that the Plaintiff was in that category.

The relevant principles

The concept of contributory negligence involves the reduction of the damages recoverable “to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage”: s 10(1)(b) of the Law Reform Act 1995 (Qld). In determining what may be “just and equitable” the principles explained in Podrebersek v Australia Iron and Steel Pty Ltd[324] are relevant:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.” (my emphasis and citations omitted)”

[324] (1985) 59 ALJR 492 at 494.

In Green v Hanson Construction Tools Pty Ltd[325] the Court of Appeal observed:
[325] [2007] QCA 260 at [29]-[32].

“Contributory negligence is defined by Professor Fleming as the plaintiff’s failure to meet the standard of care to which he or she is required to conform for his or her own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about the plaintiff’s injury.
In this statement there are three matters which require particular attention. Firstly, a person may be guilty of contributory negligence notwithstanding that he or she owed no duty to the defendant or any third person.
….
Secondly, a person may be guilty of contributory negligence if the person contributed to his or her injury. It does not matter whether the plaintiff’s failure to protect himself or herself contributed to the accident itself. What is important is if the plaintiff’s want of care contributed to the injury.
The third matter of significance is that the burden of proof of contributory negligence lies on the defendant. The plaintiff is not required to prove that she did not contribute to her injury or the damage suffered.”

Counsel for the first defendant emphasised the following passage in Vairy v Wyong Shire Council,[326] in which Callinan and Heydon JJ wrote:

“[O]f relevance to any question of contributory negligence …, we would seek to make the point that it is not right to say, without qualification, that the difference between the duties of an injured plaintiff, and those of a tortfeasor, is that the former owes absolutely no duties to others including the defendant, while the latter owes duties to all of his ‘neighbours’. The ‘duty’ to take reasonable care for his own safety that a plaintiff has is not simply a nakedly self-interested one, but one of enlightened self-interest which should not disregard the burden, by way of social security and other obligations that a civilized and democratic society will assume towards him if he is injured. In short, the duty that he owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.”

[326] (2005) 223 CLR 422 at 483 [220].

I do not perceive that any different principle applies to an assessment under s 307 of the Workers Compensation Rehabilitation Act: cf. Kemp Meats Pty Ltd v Tompkins[327] per Holmes JA, as her Honour then was.
[327][2014] QCA 125 at [6].

Discussion

I will refer to each of the defendant’s arguments in turn.

(a)failing to follow instruction not to operate a vehicle when fatigued;
(j)failing to adhere to the fatigue management induction and training received from BMA and/or HMP and to act accordingly;

It is unclear what instruction the defendants are referring to. No particular instruction was identified in the defendants’ submissions. Presumably reliance is placed on the materials Mr Kerle was given during one of his inductions. For example as part of the New Horizons course he was provided with a booklet produced by the Mining Industry Skills Centre Inc which stated “You need to be aware too of your responsibility not to drive to and from your place of work while fatigued.”[328]
[328]New Horizons Generic Handbook Exhibit 2 tab 52 at p 59.

The induction and training, as I have previously found, was not adequate. In these circumstances I decline to make a finding that Mr Kerle departed from the standard of care of the reasonable person in not following these materials given their brevity and vagueness.

The submission that Mr Kerle drove when fatigued is dealt with below.

(b)failed to use the MAC camp accommodation to rest prior to embarking upon his journey home;

I have previously found that Mr Kerle was not aware that he could use the accommodation at the MAC site to rest after he had completed his last shift.

(c)embarked on the journey knowing or reasonably knowing that he had enjoyed no rest following the conclusion of his shift;
(g)either knew or ought to have known not to attempt to drive an excessive distance without adequate rest breaks;

Both of these propositions are evidently true, the question is whether in doing so Mr Kerle departed from the standard of care of the reasonable person. Plainly enough the relative importance of the decision to drive is of high causative potency.[329]
[329]Podrebersek v Australia Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494.

On the one hand that Mr Kerle decided to drive knowing that he had not rested and had just completed his fourth consecutive night shift illustrates the lack of education he had received such that he could not appreciate the nature and extent of the risk he was taking. But the question remains whether a reasonable person would have made that decision. As counsel for the second defendant submitted the test of contributory negligence is an objective one. However, the circumstances known to the parties will be taken into account.

Perhaps many people would be wary of attempting a 5 hour drive after completing a fourth consecutive 12 hour night shift. But the statistics I referred to earlier support that this was commonplace among mine workers. The 2008 study showed that 81% of mine workers drove alone in their cars after finishing their roster. Of those 67% drove from 1 to 3 hours, 19% 3 to 5 hours and 12% more than five hours.[330]
[330]Ex 54 p 20.

Mr Kerle had a duty “not just to look out for himself, but not to act in a way which may put him at risk.”^[331] Embarking on the drive may have put him at risk, but evidently his assessment that he could take adequate precautions to meet that risk was shared by many others. In the circumstances it is difficult to hold that it was an unreasonable decision. In Mr Kerle’s case his intended precautions included two planned rest breaks after driving two hours or less and the intention to pull over and sleep in the car on the side of the road if feeling tired.[332] I do not think the decision to drive when taken at the mine site was a departure from the standard of care of the reasonable person.

(d)travelling on such journey alone rather than in company (or failed to make appropriate arrangements to return to his home after completing his roster);

[331]Vairy v Wyong Shire Council (2005) 223 CLR 422 at 483 [220].

[332] T2-24; T2-22; T2-48-49.

I have previously detailed the failure of HMP to provide a bus service and the defendants have failed to prove that any other arrangement was open to Mr Kerle (such as other employees who lived in or near Monto and travelled to and from Monto on the same days as Mr Kerle). Again I refer to the study which showed that 81% of mine workers drove alone in their cars.[333]

[333]Ex 2 tab 54 p 20.

(e)failing to stop and refresh himself more regularly during the course of such journey prior to his accident and injury including failing to rest and/or take a shower at the Dingo Roadhouse;
(f)failing to stop and sleep or rest, in his vehicle, in the course of the journey and or in the alternative knowing, or alternatively reasonably knowing, that he was fatigued, rather than continuing and taking “No-Doz” to treat such symptoms of fatigue so as to permit him to continue to drive.
(h)failed to drive safely/or take care for his own safety in the circumstances;
(k)courted obvious risks in embarking upon and persisting in the journey when he knew that his physical limits for safe driving would be and were exceeded prior to the occurrence of the accident;
(l)having recognised the nature and extent of the risk which is alleged to have materialised in the accident, continuing the journey without adopting one or more of the precautions identified herein.

Counsel for the first defendant submitted that Mr Kerle:

“knew that he was feeling tired, such that he took a No-Doz, and still had 285 kilometres, or about 3 hours driving, to tackle, alone, before completing his journey. A sensible person would have taken a longer break, and more specifically would have slept in the car for as long as was required. He could do that at no cost whatsoever, and with complete security given that he could lock himself in the vehicle. Alternatively he could have hired a room at the Dingo Roadhouse.”

I have already found that there is no reliable evidence that Mr Kerle purchased or consumed No-Doz. Nevertheless, to make a finding of contributory negligence I must find that Mr Kerle realised he was suffering from fatigue and chose to drive on anyway.

The defendants submit that the report of Professor Dawson is evidence that “it is more probable than not that [Mr Kerle] feeling fatigued, continued to drive with full knowledge of that fact.” In his report Professor Dawson stated:

“The likelihood of a person falling asleep without an awareness of increased sleepiness, reduced alertness, yawning or struggling to stay awake etc is almost zero. If asked to put a percentage on it, it is probably less than 1%.”[334]

[334] Ex 2 tab 55, p 9 para 4.7.

Against this though is the report of Professor Rogers in which it is stated:

“One issue with sleep deprivation and fatigue is that the more sleep deprived an individual becomes the less able they are to determine how impaired they are. People tend to over-estimate how well they are performing and underestimate the effects of fatigue on their performance.”[335]

[335] Ex 2 tab 54, p 37, section 6.3.

After driving for approximately 2 hours Mr Kerle stopped in Dingo for 30 minutes. He planned to stop in Biloela which was another 2 hours on and he would have pulled over to rest in his car, as he had done before, if he felt he was too tired to continue.^[336] The accident occurred within 1 hour of his 30 minute break in Dingo – I do not think anyone driving long distances stops more frequently than once an hour, at least as a matter of precaution in the usual course. Professor Dawson referred to studies which suggest an “elevated level of risk post two hours or something approaching that” and that Mr Kerle’s accident “wasn’t archetypal in the sense that [he’d] been driving for a long time.”[337]
[336] T2-24; T2-46.
[337]T6-19/24-36.

Mr Kerle did not accept that feeling the need to stretch, winding down the car window,[338] turning up the volume in the car, feeling the need to wriggle your body in your seat, feeling lethargic or your thoughts wondering off was a warning sign that you were tired in the course of driving.[339] But he agreed that your head proceeding to nod forward involuntarily, being slow to respond to something on the road that you needed to decrease your speed, losing eye focus, eyes closing, and drifting in and out of a lane were such warnings signs.^[340] Mr Kerle said that if he experienced some of these things he would have pulled over and gone for a walk around the car.[341]
[338] Mr Kerle’s evidence was that he always drove with the car windows down and so could not give this as a point of reference as to whether a person was tired or not.
[339] T2-48.
[340] T2-48-49.
[341] T2-49.

The defendants of course are hampered in that they cannot prove what symptoms Mr Kerle was experiencing in the lead up to the accident. Mr Kerle was the only witness and he has no recollection. While Professor Dawson’s “less than 1%” comment mentioned above does not seem to be supported by any close analysis of observations as opposed to his intuitive estimate, it was not contested and it does not seem inherently unlikely that there will be warning signs of growing fatigue in the vast majority of cases. The professor refers to gross signs of which Mr Kerle was well aware. While conscious that micro sleeps can occur, and involuntarily, the probabilities seem to favour a finding that Mr Kerle must have experienced some gross signs that should have alerted him to increasing tiredness. He should also have been conscious that he had no rest for a very long time (17 to 19 hours), and had been operating machinery – whether at the mine or on the road – for most of that time. Balanced against these considerations is the fact that his own experience had been that he was well capable of driving safely for long periods. He knew that he had had a rest not long before.

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.”

[342](1986) 160 CLR 301 at 310.

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]
[343]Cf. Muller v Cherrie [2000] QSC 330 per Atkinson J at [14]-[16]; Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 at [7] per Young CJ in Eq.

I decline to make an apportionment on this ground.

failed to notify HMP (or anyone on its behalf):-
a.of his intentions when completing his roster; and
b.that he was fatigued and felt he was unable to complete a drive to his home;

Firstly, there is no evidence he was required to tell HMP of his intentions when he was completing his roster. Ms Greensill of HMP gave evidence she knew employees parked at the mine site on the last day of their shift so they could drive home immediately.[344] Secondly, Mr Kerle’s evidence was that he did not feel he was fatigued and unable to complete a drive to his home when he was still at the mine site.[345] Evidently he was mistaken as to the level of his fatigue.

[344] See [283].

[345] See [27] and see [437] above – re less able to determine how impaired they are.

INDEMNITY OR CONRIBUTION BETWEEN TORTFEASORS

In the event of my finding each of the defendants liable for the damage suffered by the plaintiff, each seeks contribution orders.

BMA seeks contribution from HMP. HMP seeks an apportionment of liability between it and BMA and between it and Axial. Axial seeks to apportion responsibility to HMP.

Relevant to each claim are sections 6 and 7 of the Law Reform Act 1995 (Qld):

6. Proceedings against, and contribution between, joint and several tortfeasors
Where damage is suffered by any person as a result of a tort (whether a crime or not) the following apply—
...

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.

7. Amount of contribution and power of the court
In any proceedings for contribution under this division the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

I have found that each of the defendants is a tortfeasor. The premise in s 6 is established.

BMA’s claim

BMA does not pursue the claims made in their Statement of Claim for damages or a contractual indemnity against HMP as HMP is in liquidation.

However BMA submits that the proviso in s 6(c) is applicable here to a claim by HMP against BMA for contribution – “that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.” BMA submits that Clause 27 of the services agreement between the parties provides for such an indemnity. It relevantly provides:

27. Liability and indemnities
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.”

There is no submission that BMA’s liability is due to “wilful misconduct or Gross Negligence”.

HMP argues that the indemnity does not apply. It submits that it is not sufficient for the contract to merely provide the occasion for the incurring of the liability. Rather BMA must show that the injuries claimed to have been suffered by the plaintiff arise “directly or indirectly” as a result of the performance of the services by HMP or Axial. “Services”, in this context, are defined as meaning, “services specified in the agreement”. HMP says that cannot be shown citing Applegarth J’s observation in Samways v WorkCover Queensland[346]:

“The words ‘arising out of’ are wide. The relevant relationship should not be remote, but one of substance albeit less than required by words such as ‘caused by’ or ‘as a result of’. The phrase connotes a weak causal relationship. However, more is required than the mere existence of connecting links. The words require the existence of a causal or consequential relationship between, in this case, the use of the plant and the injury. ”

[346][2010] QSC 127 at [72].

HMP submits:

(a) That the indemnity must arise out of some aspect of performance by the second defendant of the services. Those services are specified in the agreement but involve the removal of overburden at the Norwich Park Mine site;

(b) It is not within the scope of the clause to indemnify for the plaintiff’s motor vehicle accident, some several hundred kilometres distance from the Norwich Park Mine site. It could not be said to arise from the provision of the ‘services’ by the second defendant to the first defendant.

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).

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.

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

I turn to consider BMA’s contribution argument.

Both BMA and HMP submit that the following observations of McPherson JA in Kim v Cole[347] are relevant to the contribution question:
[347] [2002] QCA 176 at [26], [27], [33].

“In making apportionments under s 7 of the Act, the approach adopted to the significance of the causal element has not been uniform.
…

In my opinion, however, an approach to apportionment that, as a matter of law, ascribes primacy to causal potency does not accord with the provisions of s 7.
…
Among the circumstances to be considered are, in my opinion, the terms of any contract governing the rights and liabilities of the parties at the time the damage was done. Those terms may provide for a complete indemnity by one party in favour of the other as regards the damage for which they both are liable to another; or conversely, they may provide a complete exemption from or partial limit on liability for one against the other with respect to damage to be apportioned. Such an indemnity may be express, or it may result from the application of ordinary legal principles regulating contracts of that kind… or, again, it may be the effect of the nature and terms of the contract between them that one of two tortfeasors should contribute a disproportionately larger share than the other to the loss or damage for which both are liable.
…
There are analogies between the legislation facilitating apportionment between tortfeasors and the legislation providing for reduction of recoverable damages for contributory negligence; but a fundamental difference between the two is, as I have said, that in the case of the former, s6(c) of the Act envisages that the apportionment will take place against the matrix of the contractual rights and obligations, if any, of the parties that bear upon that process. In tort, the general duty of the defendant to take reasonable care is, as their Honours say, imposed by the law; but it is open to the parties to enlarge or to circumscribe the extent of that duty by the express or implied terms of the contract between them. Those terms are among the circumstances that are to be considered in arriving at a just and equitable apportionment of, or contribution to the loss or damage as between tortfeasors who are parties to such a contract. Where the contract impacts upon and affects the scope of that general duty of care in some relevant way, it must be the duty of care as so affected that governs the apportionment or contribution that falls to be determined under s7.”

HMP argues that the principles applicable to the assessment of contributory negligence apply here: James Hardy and Coy Pty Ltd v Roberts.[348] Blameworthiness and causative potency are determinants of responsibility. BMA contends that is not so – that McPherson JA’s observation in [33] above is relevant. I am bound by those statements of principle given that McPherson JA was then speaking for a unanimous (at least on this point) Court of Appeal. Here then “the contract impacts upon and affects the scope of that general duty of care in some relevant way, it must be the duty of care as so affected that governs the apportionment or contribution that falls to be determined under s7.”
[348](1999) 47 NSWLR 425.

BMA submits that the appropriate apportionment is contribution close to the point of indemnity. It contends:

“… if it transpires that the plaintiff was not the subject of instruction, and the taking of appropriate steps in relation thereto (eg accommodation), in respect of the fatigue, and more specifically commuting fatigue issue, then that was a consequence of a causative breach of the mining contract by HMP in an area in which, as between BMA and HMP, it contractually assumed responsibility.”

HMP argues for an equal apportionment:

“Taking those matters into account, liability, as between the first and second defendants, ought be equally apportioned. Both had and assumed obligations with respect to fatigue management and the first defendant had investigative powers through its ability to audit the second defendant’s performance and its ability to compel compliance under the contract. It took none of these steps, which it, clearly, was empowered to take. Its own defaults, in this regard, cannot be said to be a basis for a greater proportion of liability to be cast upon the second defendant.”

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.

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.

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

Contribution between HMP and Axial

HMP contends for an equal apportionment. Axial says that there should be none. I have rejected Axial’s claim that HMP was the employer pro hac vice of Mr Kerle which seems to inform some of the submissions made here.

HMP emphasises Axial’s superior knowledge of Mr Kerle’s personal circumstances ie where he lived, Axial’s knowledge of the work system and the relevant risk which was not less than HMP’s own, and the failure of Axial to take any steps to protect Mr Kerle.

Axial relies on the following features:

(a) the employer took reasonable care in the placement of the plaintiff’s labour;[349]
[349] Axial cites Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31.

(b) Axial had no direct involvement in the Norwich Park site and no control over it;

(c) Axial did not have any supervisors on the site and was not involved in the day-to-day work;

(d) Axial had only been supplying labour to the second defendant for a very short period of time;

(e) Axial had provided safety and induction training;

(f) Axial knew of the safety induction training which the plaintiff would carry out with the first and second defendants;

(g) Axial knew that, as a mine site, the plaintiff’s working environment would be strictly regulated and closely supervised;

(h) Axial had carried out its own site safety audit;

(i) Axial knew that accommodation was available to the plaintiff at the site;

(j) the obligations placed on the first and second defendants under the Coal Mine and Safety Act: see s 39, 41, 43 and 62.

Axial’s submissions largely ignore the point that I made earlier - the risk in question here did not arise unexpectedly out of the work performed or by reason of some quirk of circumstance. The risk was inherent in the placement of Mr Kerle at this worksite.

The matters set out in paragraphs (a), (b), (g), (h) and (j) are not particularly relevant.

As to (c) above - the one thing that Axial may have discovered if it had an on-site presence was that Mr Kerle, along with others, was leaving the site immediately at the end of roster. It may then have occurred to Axial that the induction and training given about fatigue had not brought home to the works the risk or the means of dealing with it.

As to (d), the duty of care owed to an employee is not delayed until some time when the employer gets around to considering it.

Axial’s induction (see (e) above) was uninformative and misleading.

If Axial was aware of the content of the inductions to be performed by HMP and BMA (see (f) above) then it was aware that the relevant risk was barely touched on.

While Axial may have been aware of the availability of accommodation on site (see (i) above) it failed to tell Mr Kerle of his entitlements. It could and should have done so.

Axial was presumably aware that no other steps were taken by HMP to meet the risk such as by the provision of bus service or shortening shift lengths. Given that, it became all the more important to attend to those measures that it could control to meet the risk.

Senior counsel for Axial relied on the analysis and decision in Hodge v CSR Limited.[350] There the plaintiff was injured when using a full sized jackhammer to remove concrete which had solidified in the agitator barrel of one of the host employer’s concrete agitator trucks. Hislop J declined to find the labour hire employer liable for the injury as between it and the host employer. The decision is in no way analogous to the present case. It involved a casual and unforeseeable (by the employer) act of negligence. There the injury was caused by the use of a full sized jack hammer, work was performed only from time to time, in the usual course when performed a light weight jack hammer was used, the full sized jackhammer was only used on the occasion in question because of a mechanical failure of the usual machine, and no on-site inspection by the labour hire employer was likely to have picked up the defective work system used on the occasion in question. None of these considerations are relevant here.
[350][2010] NSWSC 27

Here Axial ought to have been well aware of the risk in question, it had available to it the means of meeting that risk by the provision of an appropriate induction which should have included the four matters that I identified earlier and, had Axial done so much, there was a probability that the subject accident could have been avoided. I do not accept that the cases referred to involving a finding of de facto control passing to the host employer to be of much assistance.[351]
[351] See Barns v Parlin Pty Ltd [2010] WADC 92; Signet Engineering Pty Ltd v Melvan [2003] WASCA 313; Fennell v Supervision & Engineering Services Holdings Pty Ltd v Santos Ltd (1988) 47 SASR 6; Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338.

HMP knew that Axial expected that it would conduct inductions. It assumed the responsibility of explaining the availability of the facilities on site. HMP had the greater opportunity to provide buses and to adapt shift lengths. As well Axial can rely on the terms of its contact with HMP. Clause 9 of the terms and conditions of hire provided in part:

“Terms and Conditions – On Hire Employees

9 Your [ie HMP’s] responsibilities
…
9.6To supervise, instruct and direct our workers properly at all times whilst they are on assignment to you
…

9.9 To maintain a safe work environment and safe systems of work for our workers by
9.9.1establishing safe work practices
9.9.2 communicating safe work procedures to each of our workers
9.9.3 complying with safety standards
9.9.4 maintaining plant and equipment
9.9.5 providing induction, training and safety consumables to our workers where appropriate
9.9.6 informing our workers and us promptly of any unusual workplace risk or practice or of any change in site or safety conditions that may present a hazard to our workers
9.9.7 complying with our reasonable requests to ensure the workplace health and safety of our workers;
….”

As between the parties, HMP well understood that Axial relied on it to have in place safe work practices.

I consider HMP should bear a greater proportion of the loss. I assess the apportionment at 60/40 against HMP.

Orders

The orders will be:

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.

CITATION:	Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304
PARTIES:	HAROLD FREDERICK KERLE (Plaintiff) v BM ALLIANCE COAL OPERATIONS PTY LIMITED ACN 096 412 752 (First Defendant) And HMP CONSTRUCTIONS PTY LTD (IN LIQUIDATION) ACN 109 896 013 (Second Defendant) And AXIAL HR PTY LTD ACN 110 799 034 (Third Defendant)
FILE NO/S:	S528 of 2011
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	16 December 2016
DELIVERED AT:	Rockhampton
HEARING DATE:	5, 6, 7, 8 April and 19, 20, 21 July 2016
JUDGE:	McMeekin J
ORDER:	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.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the plaintiff was employed as a dump truck operator at a mine – where the plaintiff was injured in a single vehicle accident on his commute home after four consecutive 12 hour night shifts – where the plaintiff suffered a significant brain injury – where the plaintiff claims damages against his employer, his host employer and the operator of the mine – where the plaintiff submits that the accident occurred because he was fatigued as a result of working four consecutive 12 hour night shifts – where damages have been agreed – whether fatigue was a significant contributing cause of the accident TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where there was no dispute that the employer and host employer owed the plaintiff a duty of care – where the plaintiff submitted the scope and duty owed to the plaintiff extends to taking reasonable steps to protect him after his roster has ended and hundreds of kilometres from his workplace – where the plaintiff submits the mine operator owed him a duty of care – where the mine operator denies that any duty of care was owed – whether the scope and duty owed to the plaintiff extends to taking reasonable steps to protect him after his roster has ended and hundreds of kilometres from his workplace – whether the mine operator owed the plaintiff a duty of care – whether that duty was personal and non delegable TORTS – NEGLIGENCE – BREACH OF DUTY OF CARE – where the plaintiff submits the defendants breached their duty of care – where the plaintiff submits the defendants could have minimised the risk of injury to him by placing proper limits on the length of shifts, providing a bus service to transport workers, providing a place to rest after the last shift and providing an adequate program of education about fatigue and its risks – whether the defendants’ operations involved a risk of injury which was reasonably foreseeable – whether there were reasonably practicable means of obviating such risks – whether the plaintiff’s injury was caused by the risk in question – whether the proposed measures would have minimised the risk of injury sufficiently to avoid the accident – whether the failure of the defendants to eliminate the risk showed a want of reasonable care for the plaintiff’s safety – whether the plaintiff’s conduct in continuing to drive after a rest stop is a break in the chain of causation TORTS – NEGLIGENCE – CONTRIBUTORY NELIGENCE – where the defendants claim the plaintiff was contributorily negligent by inter alia courting obvious risks in embarking upon the journey and failing to stop and sleep or rest – whether there should be an apportionment of liability made against the plaintiff for contributory negligence TORTS – THE LAW OF TORTS GENERALLY – JOINT OR SEVERAL TORTFEASORS – CONTRIBUTION – where the mine operator seeks contribution from the host employer – where the host employer seeks an apportionment of liability between it and the mine operator and between it and the employer – where the employer seeks to apportion responsibility to the host employer – whether a finding of contribution or apportionment should be made Civil Liability Act 2003 (Qld) s 5, 9 (1)(b) Civil Liability Regulation 2003 (Qld) Coal Mine Safety and Health Act 1999 (Qld) s 5, 6, 33, 34, 37, 38, 39, 41, 43, 47, 62 Coal Mining Safety and Health Regulation 2001 (Qld) s 42 Evidence Act 1977 (Qld) s 18, 101, 102 Law Reform Act 1995 (Qld) s 6, 7, 10 Workers Compensation & Rehabilitation Act 2003 (Qld), s 31, 32, 34, 35, 307 Workplace Health & Safety Act 1995 (Qld), s 28(3), 30(1)
COUNSEL:	Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, cited Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243, cited Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338, cited Baker v Quantum Clothing Group Ltd [2011] 4 All ER 223, cited Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, cited Barns v Parlin Pty Ltd [2010] WADC 92, cited Barrett v Drake Personnel Limited Unreported, 20 April 1998, cited BHP Billiton Ltd v Parker [2012] SASCFC 73, cited Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, cited Bryan v Maloney (1995) 182 CLR 609, cited Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, considered Cavanagh v Ulster Weaving Co Ltd [1960] AC 145, cited Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, considered Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, cited Deutz Australia Pty Ltd v Skilled Engineering Ltd & Anor [2001] VSC 194, cited Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, cited Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410, cited Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177, cited EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238, cited Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] 1 VR 246, cited Fennell v Supervision & Engineering Services Holdings Pty Ltd v Santos Ltd (1988) 47 SASR 6, cited Fraser v Burswood Resort (Management) Ltd [2012] WADC 175, cited General Cleaning Contractors v Christmas [1953] AC 180, cited Gorris v Scott (1874) LR 9 Exch 125, cited Green v Hanson Construction Tools Pty Ltd [2007] QCA 260, cited Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited Harris v Woolworths Ltd [2010] NSWCA 312, cited Hodge v CSR Limited [2010] NSWSC 27, cited Hollis v Vabu Pty Ltd (2001) 207 CLR 21, cited James Hardy and Coy Pty Ltd v Roberts (1999) 47 NSWLR 425, cited Jones v Dunkel (1959) 101 CLR 298, cited Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273, considered Kemp Meats Pty Ltd v Tompkins [2014] QCA, cited Kim v Cole [2002] QCA 176, cited Kondis v State Transport Authority (1984) 154 CLR 672, consider Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, cited Kuhler v Inghams Enterprises Pty Limited [1997] QCA 386, cited Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, considered Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, cited McKenzie v Vella’s Plant Hire Pty Ltd [2013] 1 Qd R 152, cited McLean v Tedman (1984) 155 CLR 306, cited Medlin v State Government Insurance Commission (1995) 182 CLR 1, cited Morris v West Hartlepool Steam Navigation CoLtd [1956] AC 552, cited Muller v Cherrie [2000] QSC 330, cited Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, cited Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201, cited Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, considered Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406, considered Podrebersek v Australia Iron and Steel Pty Ltd (1985) 59 ALJR 492, cited Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, cited Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268, cited Queensland Corrective Services Commission v Gallagher [1998] QCA 426, cited R v Lace [2001] QCA 255, cited Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, cited Samways v WorkCover Queensland [2010] QSC 127, cited Signet Engineering Pty Ltd v Melvan [2003] WASCA 313, cited Simon-Beecroft v Proprietors “Top of the Mark” Building Units Plan No 3410 [1997] 2 Qd R 635, cited Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, considered Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, cited Stuart v Kirkland-Veenstra (2009) 237 CLR 215, cited Sutherland Shire Council v Heyman (1985) 157 CLR 424, cited Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, cited Tabet v Gett (2010) 240 CLR 537, cited Thomas v Sydney Training & Employment Ltd [2002] NSWSC 970, cited Thompson v Smiths Shiprepairers(North Shields) Ltd [1984] QB 405, considered Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234, cited Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181, cited Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31, cited Tunney v Midland Railway Company (1866) LR 1 CP 291, cited Turner v South Australia (1982) 56 ALJR 839, cited Vairy v Wyong Shire Council (2005) 223 CLR 422, cited Voli v Inglewood Shire Council (1963) 110 CLR 74, cited Vozza v Tooth & Co Ltd (1964) 112 CLR 316, cited Wilkinson v BP Australia [2008] QSC 171, cited Wyong Shire Council v Shirt (1980) 146 CLR 40, considered G Diehm QC with A Luchich for the plaintiff R Douglas QC for the first defendant R Perry QC with J Rolls for the second defendant R Treston QC with G O’Driscoll for the third defendant
SOLICITORS:	Rees R and Sydney Jones for the plaintiff HWL Ebsworth for the first defendant Barry Nilsson for the second defendant BT Lawyers for the third defendant