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Apprentice fatigued by early starts and full-time hours

The tragic death of an apprentice was linked to his employment, a commission has ruled.
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Apprentice fatigued by early starts and full-time hours

Apprentice fatigued by early starts and full-time hours

18 February 2020

An apprentice who died after falling asleep at the wheel had worked normal hours with regular work breaks... so why did a commission find his employment contributed to the tragic accident?

When an apprentice died in a car crash while driving 55 kilometres from work to home, fatigue was found to be the major cause. The workers compensation insurer denied liability on the ground that the apprentice worked normal hours with work breaks, so his employment did not contribute to his fatigue, which was instead caused by lifestyle factors.

However, the NSW Workers Compensation Commission held that there was sufficient connection between his employment and his fatigue for a journey-related claim to succeed. Employment did not have to be the only causal factor, only a “real and substantial connecting factor”.

Fell asleep at the wheel

The employee was aged 21 and had been employed as a printing/graphic arts apprentice for six weeks. While driving home he fell asleep and his car veered into oncoming traffic and hit a truck. His passenger, a workmate, was also asleep. His lifestyle included driving 55 kilometres each way to/from work, daily gym sessions, picking up his sister from school and dance classes, and other family and social obligations. This required him to leave home by 5.30am each day and resulted in him having insufficient sleep at a time when he was also not used to a full work shift each day.

His father claimed that work demands had contributed to the fatigue, plus he was driving home from work and therefore it was a journey in the course of employment. It was his first full-time job and he was not used to the work routine and the hours required (for instance the early start each day).

Family members gave evidence that the employee frequently looked tired and complained of feeling tired. There was evidence he was managing no more than about 6.5 hours sleep per work day, and that plus the early wake-ups and work starts could contribute to a mid-afternoon dip in alertness.

The insurer and the employer claimed that the employee had worked a normal 38-hour week, with work breaks and no overtime. He had never complained about fatigue at work, however he had only been in the job for seven weeks. They argued that his lifestyle caused him to be fatigued.

Decision

The commission upheld the father’s claim. While the employee’s lifestyle contributed to his fatigue, there was still a “real and substantial connection” between his employment and the fatigue that caused the crash. The father did not have to prove that employment was the only contributing factor, only that there was sufficient connection between employment and the crash.

The commission requested submissions from the parties in order to determine payment to the father and assess his “dependency on the deceased”. The father was seeking a lump sum death benefit of $750,000.

The bottom line: While outside-work lifestyle factors may contribute significantly to an injury or fatality, a worker’s claim can succeed if he/she can prove there was still a “real and substantial connection” with employment, even though other factors also contributed. Note that the word “contribution” is used, not “cause”. In this case, the death occurred while driving home from work.

Read the judgment

Eather v Skillset Limited [2020] NSWWCC 11, 7 January 2020 

 

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