Million dollar claim sets precedence
COURT decision makes employers responsible for tired workers.
Wednesday 21 December 2016
Mining companies, Contractors and Labour Hire businesses across Queensland are meeting with their legal and HR teams to interpret what a landmark court decision this week will mean for the future.
A central Queensland coal miner has been awarded $1.25 million in damages after being injured in a car crash while driving home following a 12-hour shift at the BMA owned Norwich Park mine near Dysart.
The court heard Harold Kerle was driving at 6:30 am in October 2008 when he failed to negotiate a slight curve and crashed his car leaving him with permanent brain damage.
Under examination, Mr Kerle told the court that on his last rostered day at work, he packed his car, handed in his camp key and drove to the mine site, rather than catch the bus provided because it meant he could be on the road and home faster after work.
"I had every intention of driving home from the mine," he said.
Mr Kerle said he had no recollection of being told to report travel plans to supervisors or being taught that signs of fatigue may not be obvious even if present.
He also said he could not remember having any training or education on sleeping or resting before commencing travel after a shift.
BHP Mitsubishi Alliance (BMA), contractor HMP, and labour hire company Axial jointly argued that Mr Kerle should carry some of the responsibility for what happened and that individuals should take care of their safety on a public highway in these circumstances.
Further, they argued that Mr Kerle should have slept before embarking on his journey home.
However, Justice Duncan McMeekin rejected their arguments, saying Mr Kerle wasn't told a room was available for him at the end of the shift, and made the following points about fatigue.
“First is that the full impact of fatigue is not well understood,” he said.
“The second lies in the fact that 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 this case, is not fully appreciated by the average lay person.
“The third is that individuals do not necessarily recognise when they are fatigued.”
Despite the significance of the finding, neither BMA or the Queensland Resources Council are commenting on the case.
Injury lawyer George Cowan from Rockhampton-based legal firm Rees R & Sydney Jones Solicitors said the case was likely to lead further court cases and was significant for everyone in the mining community.
“It’s a big win for mining communities,” he told Shift Miner.
“ Not only will the decision have ramifications for mining employees, but also for the whole community.
“Families regularly travel on the roads where fatigued miners are driving home after finishing their shifts and the community as a whole deserves the big companies to better manage fatigue in their workers and ensure all road users are safe.”