Night Workers Must be Told of Dangers
Fraser v Burswood Resort (Management) Ltd WASCA 130 (15 July 2014)
Most people would assume it is obvious that working nights might give rise to tiredness and fatigue and no one ought to be warned about this. But the WA Supreme Court thinks otherwise. It has decided, on appeal, that “the increased risks to which night-shift workers are exposed when driving home in the pre-dawn hours” are not matters “which are so blindingly obvious and well known to all, that it could be safely assumed that all workers would be aware of them”.
The case before the court, sitting on appeal and chaired by the Chief Justice, related to a casino employee who crashed her car on the way home after working her regular night shift. She sued her employer on the basis that it had a duty of care towards her which would have included warning her of those increased risks. She also argued that she should have been offered a place to rest after her shift so as to “nap” and also that her shift time should be altered to allow her to drive home after dawn, i.e. in broad daylight.
Most of her arguments were rejected by the appeal court on the basis that she could not prove she actually fell asleep and therefore that contributed to the crash. Further, the trial judge, with whom the appeal bench agreed, believed even if she had been warned and offered a place to rest before driving home, her overriding concern was always to go home at the end of her shift.
However the trial judge did find that the employer had a duty to warn the employee that working night shift increased the risks of fatigue and drowsiness, which in turn heightened the risk of an accident on the drive home. While no adverse findings were made against the company as a result of this, (the case generally failed on the other points) the company nevertheless cross appealed this aspect of the case. Its grounds were that this was self-evident and employees ought to know this.
The appeal court did not accept this argument, and while it agreed that in general terms this is, and should be, obvious at one level, there is a more difficult aspect to the problem. There was evidence led that a continuing problem is sleep debt, an accumulation of sleep deficit and this is something many night shift workers are oblivious to. Further, there is also the issue of employees being at work in bright lighting and engaged in activity right up to their knock-off time, only to move to a darkened car, often on very quiet roads. The significant difference in the environments can contribute to drowsiness, through relaxation.
The upshot of this case is that a senior state supreme court has made the finding that an employer has a duty of care to warn night shift workers of these threats. In this matter, other factors came into play to leave the ultimate responsibility for the crash and subsequent permanent injury squarely on the employee’s shoulders. But that will not always be the case.