In the case of Kerle v BM Alliance Coal Operations Pty Ltd, the Supreme Court of Queensland considered the issues of work related fatigue, the duty of a mine operator to a worker and the question of whether a labour hire worker could be a servant of its host employer pro hac vice (for one occasion only), allowing the labour hire employer to shift responsibility for a worker to their host employer.
The doctrine of pro hac vice has the effect of deeming that someone is an employee of a company using the services of the person ‘for the time being’ or ‘for the occasion’. In negligence and workers’ compensation cases, successfully arguing pro hac vice will see an employer transfer their responsibility for a worker to another party. However, as this case illustrates, there is a heavy burden upon an employer who attempts to shift responsibility for a worker.
Kerle was an employee of Axial HR Pty Ltd (Axial), a labour hire firm. He was as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland. His host employer was HMP Constructions Pty Ltd (HMP). BM Alliance Coal Operations Pty Ltd (BMA) was the mine operator.
In October 2008, at the end of four overnight 12-hour shifts, Kerle began driving to his home in Monto (more than 400 km away from the mine) and apparently fell asleep at the wheel some 300 km into his journey. At the time of the accident, Kerle had been awake for 17 to 19 hours. Kerle’s vehicle swerved onto the right-hand of the road, hit a rail and then a concrete wall, resulting in significant injuries to Kerle, including a brain injury.
Kerle brought claims in negligence against Axial, HMP and BMA; on the basis that each company owed him a duty of care that had been breached.
At trial, the Court considered issues such as:
- fatigue and the other factors which could possibly have led to the accident;
- whether Kerle was contributorily negligent, by starting or continuing the journey without sufficient rest;
- which of the Defendants owed a duty of care to Mr Kerle;
- how damages should be apportioned between those Defendants.
Justice McMeekin recognised that Kerle was an honest witness but that there were significant evidentiary problems with Kerle’s evidence because of his fatigue at the time of the accident and the head injuries he suffered. However, the Court ultimately decided in his favour and awarded damages against his employer as well as against HMP and BMA.
Kerle’s employer, Axial, argued that Kerle was under the ‘effective control and supervision’ of HMP, and that HMP was therefore the employer pro hac vice. In rejecting this argument, Justice McMeekin referred to the English case of Mersey Docks Harbour Board v Coggins & Griffiths (Liverpool) Ltd noting that the burden of proving an entity is an employer pro hac vice is very difficult and ‘can only be discharged in exceptional circumstances’, where the ‘entire and absolute control’ over the employee had passed to the second employer. Justice McMeekin found that, in Kerle’s case, entire and absolute control had not passed from Axial to HMP, and that HMP was therefore not the employer pro hac vice. The facts relied upon by His Honour in arriving at this decision were that:
- the Plaintiff’s employment required him to report to both a site supervisor of HMP and Axial, providing him with the contact details for both;
- it was a condition of his employment that he contact an Axial supervisor if he was unable to work on a particular day or if he was injured;
- the Plaintiff was required to comply with Axial’s code of conduct while on site or at accommodation provided by the client; and
- it was the, ‘policy of Axial to monitor and control the fatigue levels of employees at work, particularly when working extended hours’.
The Court found that responsibility for Mr Kerle’s injuries should be apportioned between Axial, HMP and BMA, to the Defendants as follows:
- 36% (to Axial – employer);
- 54% (to HMP – host employer); and
- 10% (to BMA – mine operator).
The Court awarded damages to Kerle in the sum of $1.25M.
BMA’s Duty of Care
One significant aspect of the judgment was the finding that BMA, the mine operator, owed a duty of care to the Plaintiff.
His Honour found that it was not appropriate to limit consideration of whether a duty of care was owed to the usual circumstances in which a duty might be owed by a principal to an independent contractor (as per Stevens v Brodribb Sawmilling Co Pty Ltd or Leighton Contractors Pty Ltd v Fox), because:
- The risk of personal injury in Stevens arose from the organising of activities between different contractors and that was not the risk here;
- The Plaintiff was not injured when carrying out a specialised task that fell within the expertise of HMP or Axial;
- BMA had detailed knowledge of the safety issues surrounding managing workplace fatigue; and
- The risk did ‘not arise from the physical exigencies of the workplace or directly from the manner in which the work was performed by either Axial’s employees or any other contractor’. BMA brought the risk into being by its insistence on the consecutive 12-hour night shifts. And otherwise, statements of principle by Justices Brennan and Mason in Stevens, supported the imposition of a duty where the principal created the risk.
Taking into account these matters, including the features of the relationship between the Plaintiff and BMA, the Court was satisfied that BMA owed the Plaintiff a duty of care.
Justice McMeekin accepted that fatigue was the most likely cause of the accident and rejected the Defendants’ argument that Kerle was contributorily negligent. In doing so, the judgment addressed the allegations of the Defendants on contributory negligence, finding most notably:
- There was no specific instruction by the Defendants to Kerle not to operate a vehicle when fatigued;
- Kerle was not aware that he could use the accommodation at the site to rest after he had completed his last shift;
- Kerle’s decision to embark upon the drive knowing that he had not rested and after completing his fourth consecutive night shift, illustrated his lack of understanding about fatigue.
Principally, Kerle’s case is significant because it is one of a small number of Australian decisions which has considered workplace fatigue and related system failures in recent years. It will be of interest to employers and businesses operating in a number of industries (e.g. mining, oil & gas, transport) where workers travel for extended periods or, work long consecutive shifts on a FIFO basis. The case may also be of interest to compulsory third party insurers.
Secondly, it reinforces established law that employers, such as labour hire companies who provide labour to other companies, will not find it easy defend a claim on the basis that the employee was a servant pro hac vice of another entity.
And finally, it is of interest because the mine operator was found to have owed the Plaintiff a duty of care. This finding will be of particular interest to parties involved in multi-party disputes in mining, construction, oil & gas and infrastructure.
A full copy of the Court’s decision can be downloaded here.
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