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Employer duty to warn night-shift workers of driving risks

In Fraser v Burswood Resort (Management) Ltd, the employee worked as a croupier at the Burswood Casino.  The employee had finished her shift and about half an hour into her journey home, the employee lost control of her motor vehicle which rolled four or five times.  The employee was seriously injured and has ongoing disabilities.

The employee argued that her employer had failed to take action to reduce the risk of an accident occurring. She claimed that she had fallen asleep at the wheel and that her employer had breached its obligations in not taking steps to prevent this from happening.

The Trial Judge held that the employee had not proven that the accident was caused by her falling asleep at the wheel and dismissed her claim. However, the Trial Judge also found ‘that Burswood had breached the duty which he found it owed to warn [the employee] of the risks associated with driving home after night-shift’.

On appeal, the Court of Appeal upheld the Trial Judge’s decision and dismissed the appeal. It noted Burswood’s argument that the risks of driving home after a night shift were obvious.  To that, the Court of Appeal said:

“While there may be some risks which are so blindingly obvious that a warning of those risks would be … unnecessary, many of the risks identified by the evidence in this case are not of that character…it could not be safely assumed that all would be aware of the risk of accumulating a sleep debt as a result of repeatedly failing to obtain sleep of the length and quality which they require.”

Implications for Employers

This case is an interesting insight into the level of duty that an employer may owe to its employees. It is noted that although the Court found the duty had been breached, it did not find the employee was entitled to damages. Employers who employ shift workers are recommended to take heed of the decision and consider putting measures in place to make such employees aware of this risk.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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