Kerle v BM Alliance Coal Operations Pty Limited

The case of Kerle v BM Alliance Coal Operations Pty Limited involves the plaintiff, Mr. Kerle, who was employed as a dump truck operator at a mine. He was injured in a single vehicle accident on his commute home after four consecutive 12-hour night shifts, resulting in a significant brain injury. He claims damages against his employer, the host employer, and the mine operator, submitting that the accident occurred because he was fatigued as a result of working the extended shifts. The primary issues in the case were whether fatigue was a significant contributing cause of the accident and whether the employer, host employer, and mine operator owed Mr. Kerle a duty of care that extended to taking reasonable steps to protect him after his roster had ended and hundreds of kilometres from his workplace.

The court held that the employer and host employer owed Mr. Kerle a duty of care, which extended to taking reasonable steps to protect him after his roster had ended. The court found that the mine operator also owed Mr. Kerle a duty of care. The court rejected the mine operator's argument that the duty was not personal and non-delegable. The court found that the employer, host employer, and mine operator breached their duty of care by not taking reasonable steps to mitigate the risk of injury to Mr. Kerle. The court found that the proposed measures, such as 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, would have sufficiently minimized the risk of injury to avoid the accident. The court found that the failure of the defendants to eliminate the risk showed a want of reasonable care for Mr. Kerle’s safety.

The court held that Mr. Kerle was not contributorily negligent in continuing to drive after a rest stop, as his conduct did not break the chain of causation. The court found that there should be no apportionment of liability made against Mr. Kerle for contributory negligence. The court found that there should be an apportionment of liability between the employer, host employer, and mine operator. The court held that the mine operator was entitled to seek contribution from the host employer, and the host employer was entitled to seek an apportionment of liability between it and the mine operator and between it and the employer. The employer was also entitled to seek to apportion responsibility to the host employer.

The court ordered that the parties 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. If the parties reach agreement, short minutes of those orders are to be provided to the Associate to McMeekin J. If the parties are unable to agree, the proceedings are adjourned.