The relationship between fatigue and work accidents under the workers compensation legislation was recently analysed in the New South Wales Workers Compensation Commission.
A worker was driving home from work on 10 November 2015 when he was killed in a motor vehicle accident. This meant that his dependants were unable to obtain compensation for his death unless they could prove that there was a real and substantial connection between the accident that led to his death and his employment.
The insurer conceded that the accident was caused by fatigue, but denied that the fatigue was sufficiently connected to his employment. The insurer relied specifically upon an argument that the worker had the opportunity for sufficient sleep before commencing work, along with observations by the worker’s colleagues that he did not seem to be fatigued. The insurer also relied on expert evidence to support its argument that the worker’s fatigue was caused by his weekend recreational and social activities, and not his employment.
The worker was a 21 year old printer/graphic art apprentice who was required to get up early each day to drive approximately 45 minutes to the workplace. He worked 38 hours per week. He had only recently commenced his apprenticeship. His shift hours had recently been altered prior to his accident. This alteration meant that the worker was required to start work 30 minutes earlier each day.
Previous cases had made it clear that not every major accident will give rise to a sufficient connection between the injury and employment. There was significant expert evidence in this case to assist the Commission to determine the dispute. The most persuasive evidence in this case was that of Professor Dawson; an expert in sleep and fatigue management.
Professor Dawson stated that it was likely that the worker’s early start times, change in shift times, and travel to and from work would have resulted in the worker having a significantly reduced sleep opportunity. Professor Dawson concluded that the worker would have only slept for 5.5 to 6.5 hours each night, instead of the recommended 7 to 9 hours each night. In Professor Dawson’s opinion, this would have likely led to increased levels of fatigue, which was in part due to circadian factors. Circadian factors were also in play in the mid-afternoon (at the time of the worker’s accident) when sleepiness and fatigue were heightened.
The Commission found that while there were certainly other factors in play that contributed to the worker’s fatigue, such as social activities and regularly attending the gym, there was a real and substantial connection between the worker’s employment and the accident that caused his death. This meant that the insurer was ordered to pay compensation to the worker’s dependants.
The case is interesting because it shows the need to take into account sleep patterns when determining how to deal with fatigue in cases such as this. It also highlights that fatigue in the workplace is not limited to employees who are required to work 12 hour rotating shifts.
You can access the full decision here Eather v Skillset et al  NSWWCC 11