In a ground-breaking decision, the Supreme Court of Queensland has found three defendants liable for injuries a worker sustained in a car accident as he drove home from work after his fourth consecutive 12-hour night shift: the mine operator, the labour hire agency and the host employer.
The case emphasises the need for organisations to fulfil a duty of care to all workers on their site, and the importance of effective training in health and safety.
The worker, Mr Kerle, claimed that the accident, which occurred during his 430 km journey home alone, happened because he was fatigued due to working four consecutive night shifts at the mine where he was employed. The mine operator, the labour hire agency and the host employer all denied the existence of a duty of care.
Interestingly, the court found each defendant liable, the finding in this case that the mine operator was liable for an independent contractor working on its site but not directly engaged by the operator sets a new precedent for the extension of liability.
The court accepted that the defendants could have mitigated against their risk, thereby preventing or reducing liability in the following ways:
1. Limiting the length of shifts.
2. Providing a bus service to transport workers at the end of a roster to major centres.
3. Providing a place for a worker to rest after a shift.
4. Providing a program of education for workers about fatigue and its risks.
The court took the view that the training given to Mr Kerle fell well short of equipping him with the essentials he required to deal with the risk. According to the court, “essentials” include education about basic concepts behind fatigue and the warning signs of the onset of fatigue.
This case highlights for all organisations the importance of fulfilling their duty of care to not just their own employees, but to all workers, including independent contractors working on their site.
Key things to remember about workplace laws and contract employees:
- Liability extends beyond your employees- labour hire companies can be liable for their employees while offsite; host employers can be liable for independent contractors they engage; and organisations can be liable for workers working on their site, even if they do not contract with or engage them directly.
- To protect your business from a finding that you did not discharge your duty of care, ensure that your employees, contractors and those working on your site received training in all relevant health and safety matters, and that adequate control measures are implemented accordingly.