CQ miner wins $1.25m fatigue crash lawsuit

A CENTRAL Queensland miner has been awarded $1.25 million in damages after suffering structural brain damage when he crashed during a 430km drive home after a 12-hour night shift.

Harold Kerle was driving home to Monto from Norwich Park Mine near Dysart on October 30, 2008 when he veered from the road and collided with a concrete wall on a bridge crossing on the Burnett Hwy.

Mr Kerle, who at the time was employed as a dump truck operator, was left with serious brain injuries.

Earlier this year, he sued BM Alliance Coal Operations, contractor HMP Constructions and employment company Axial HR for damages, alleging they had breached a duty of care in allowing him to drive over 430km home while fatigued.

Each of the companies denied responsibility and the civil case went to trial at the Supreme Court in Rockhampton in April.

The judgement handed down by Justice Duncan McMeekin yesterday stated Mr Kerle was returning home after four consecutive night shifts, the last finishing at 6am that day.

He started the drive back to Monto at 6.30am, but crashed just before 10am about 300km into his journey.

Mr Kerle had taken a 30 minute break from driving at the Dingo Roadhouse, about 125km from the crash location.

In handing down the judgement, Justice McMeekin noted the unreliability of Mr Kerle's recollections of the crash given his injuries.

While there is no evidence as to what happened, Justice McMeekin was satisfied that fatigue was at least a contributing cause.

Evidence was presented showing 12 hour work shifts were associated with greater fatigue and working times at Norwich Park were at the "upper limit" of what was acceptable.

Mr Kerle submitted the companies had a duty to take reasonable care to avoid or minimise the risk of injury to workers resulting from the fatigue caused by four consecutive 12 hour night shifts.

While the companies each denied this, Justice McMeekin found they did owe a duty to Mr Kerle.

Justice McMeekin found HMP, and similar employers, "created the risk by the insistence on consecutive 12 hour night shifts with its consequent, and inevitable, fatigue".

"As each defendant stressed they are not in a position, and cannot reasonably have been expected, to control the risks inherent in highway travel," Justice McMeekin said.

"The duty cannot extend so far.

"But that cannot mean that no duty is owed in circumstances where the risk emanates from the workplace, the risk was created for the profit of the defendants, and significant means to minimise the risk lies in the workplace practices and facilities."

Justice McMeekin concluded employers could educate workers about the risk of injury, control shift lengths, provide places of rest and provide transport to and from the site.

In the judgement, Justice McMeekin examined the booklets on shift work and fatigue published by BMA and Axial.

It seems the information provided by BMA was more comprehensive than that provided by Axial, with Justice McMeekin concluding the latter was "quite misleading in downplaying the risks involved".

Justice McMeekin said these booklets showed the companies were aware of the risk of injury due to fatigue during the commute.

He said the companies "chose to work in the mining sector and were involved in the decision to place men on night shift work".

"The relevant controlling minds should have familiarised themselves with relevant safety issues," Justice McMeekin said.



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