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Service Excellence ConsultingPty Ltd

Labour hire agency found liable for failing to manage risk of fatigue

In a recent decision by the Queensland Supreme Court , a mine operator, a labour hire agency and a host employer were all found liable for serious injuries sustained by a dump truck operator in a car accident that occurred during his drive home from work.

The accident occurred after the worker, Harold K, had driven nearly three-quarters of his 430km journey home, and resulted in injuries, including a significant brain injury.

Harold sought damages against the three parties, claiming that they breached their duties owed to him in various ways, thereby causing his injuries. His argument turned on the fact that he had been fatigued as he had completed four consecutive 12-hour night shifts at his workplace (a mine) just prior to beginning his drive home.

In a surprising decision, Justice Duncan McMeekin ordered $1.25 million in compensation to be paid to Harold by all three parties. In doing so, the Justice clarified that while the parties were not considered to be ‘an insurer of [Harold]’s safety’, they did have a shared duty to take reasonable care.

The Justice further explained that the scope and content of the duty owed by the labour hire agency and the host employer extended to “taking reasonable steps to protect him after his employment had ended and hundreds of kilometres from his workplace”. Essentially, he found that each party had breached the shared duty of care they owed Harold, and this breach was what had caused his injuries.

While this particular case concerned a mine, it seems likely that the decision may extend to other industries where fatigue is likely to be caused by long, consecutive shifts, or jobs in remote locations which require workers to travel long distances after completing their shift.

It may be that even where risk management plans are in place, they do not adequately address the risks. In this case, Justice McMeekin suggested that the risk of fatigue could have been better reduced by limiting the length of shifts, providing a bus service to transport workers after shifts, providing a place for workers to rest, and educating workers about fatigue and its risks.

This outcome may come as a shock to labour hire agencies, and ought to be a wake-up call to review risk management practices.

If you have any questions about your risk management practices, please do not hesitate to contact Dianne Gibert, Managing Director of Service Excellence Consulting Pty Ltd.