Kuhler v Inghams Enterprises Pty Limited
[1996] QDC 291
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- Kuhler v Inghams Enterprises Pty Limited[1996] QDC 291
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Kuhler v Inghams Enterprises Pty Limited[1996] QDC 291
Kuhler v Inghams Enterprises Pty Limited[1996] QDC 291
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 1109 of 1995 |
BETWEEN
NICOLA KUHLER | Plaintiff |
AND
INGHAMS ENTERPRISES PTY LIMITED | Defendant |
AND
WORKERS' COMPENSATION BOARD OF QUEENSLAND | Defendant by Election |
REASONS FOR JUDGMENT - ROBIN Q.C., D.C.J.
Delivered the 6th day of November 1996
Catchwords:
Tort - negligence - employer and employee - employee fell asleep driving home from an all-night shift - 2 weeks before plaintiff's accident employer changed its shift system - shifts rotated, overnight shifts and evening shifts alternating - whether system of work unsafe and the cause of the plaintiff's sleep deprivation - accident occurred after Monday night shift, following a 70 hour break from work in which she was active and had less sleep than usual - employer had no knowledge of difficulties of tiredness the new roster caused plaintiff and fellow employees
Counsel: | Mr Geraghty for Plaintiff |
| Mr Griffin QC for Defendant by Election |
Solicitors: | Shine, Roche McGowan for Plaintiff |
| McInnes Wilson & Jensen for Defendant by Election |
Hearing Dates: | 30.9.96, 1.10.96 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 1109 of 1995 |
BETWEEN
NICOLA KUHLER | Plaintiff |
AND
INGHAMS ENTERPRISES PTY LIMITED | Defendant |
AND
WORKERS' COMPENSATION BOARD OF QUEENSLAND | Defendant by Election |
REASONS FOR JUDGMENT - ROBIN Q.C., D.C.J.
Delivered the 6th day of November 1996
Just before 6 a.m. on 29 March 1994 the plaintiff was driving her motor vehicle home after having worked a “twelve hour shift” for the defendant, her employer. Her vehicle was seen by an approaching motorist, Mr Rogers, to veer to its left, then to the right, and before long cut sharply to the right across the path of the approaching vehicle (which Mr Rogers had caused to slow); once off the road, it side-swiped a small tree and probably rolled right over, traversing an embankment, before coming to rest. The plaintiff's work was at Enterprise Street, Cleveland, her home (about forty kilometres away) at Jimboomba. There was nothing about the road, or the (good) weather conditions, the plaintiff's vehicle itself, or any animal(s) or other traffic about the road to account for the accident, in which the plaintiff was injured. Her case is that she fell asleep at the wheel; the defendant by election says it is just as likely that she was inattentive for some other reason, and panicked when she suddenly became aware of Mr Rogers' vehicle. She says she has no recollection of any part of the accident, indeed, of anything before being assisted by Mr Rogers or others who came to her vehicle. She appeared to have no recollection of any part of the drive home. I took the evidence of her expert witness, Dr Morrison, who has expertise in identification and management of sleep disorders (other than insomnia) to be that if, as he considered highly probable, the plaintiff had drifted into a micro-sleep, it would be surprising if the erratic movement of her vehicle did not cause her to wake up. There was no evidence that she was concussed in the accident, although she said she had a bump behind her right ear.
Without suggesting Mrs Kuhler was trying to mislead the Court, I found her evidence was not always compelling. I have in mind not only her surprising lack of recollection of anything to do with the lead-up to or course of the accident; her stated reason for not seeking to return to the defendant's employ after the accident, namely that she was required always to work looking down, which injury she suffered to her cervical spine precluded her doing comfortably, was less than convincing - as a leading hand, her work would be more varied, and not within the description she gave; I could not be confident in accepting her evidence that in years of working evening shifts for the defendant on afternoon-evening shifts, some of which, like that on Wednesday, 2 February 1994, required her to be at work for longer than 12 hours (see Exhibit 12), she had never felt tired (P. 29 1.58), an unlikely proposition quickly qualified to one that she had never felt as tired as she did from the third week of March 1994, when the defendant changed its roster system. Whether the accident occurred because the plaintiff fell asleep at the wheel is but one of the issues this case has in common with Dredge v The State of South Australia (1994) Aust. Torts Rpts. 81-271. That issue I resolve in the same way, namely in the plaintiff's favour. The principle enunciated by Lord Loreburn LC in Richards Evans & Co Ltd v Astley (1911) AC 674, 678, which assisted Mr Dredge I find of assistance too:
“It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The applicant must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends and there is everything pointing to it then there is evidence for the Court to act upon.”
Dr Morrison's evidence confirms as a reasonable possibility that the plaintiff might have fallen asleep without prior warning that it might happen.
Dredge's case is distinguishable in important respects. He was a police officer, injured while at work driving a police van, which the judge held he ought not have been ordered to do unaccompanied in the circumstances. He was hurt close to the end of an 11 p.m. to 7.30 a.m. shift. He had been unable to enjoy his usual short afternoon sleep before the shift because in the course of his duties he had been required to spend the day waiting around to give evidence at court. His evidence was challenged in cross examination and he went home “all tense and worked up”, unable to get more than half an hour's sleep. When he reported for his night shift, the circumstances of the day were made known to the Sergeant, who disputed advice supposedly received from the officer in charge of another police station that he was not required to report for his night shift until eight hours had elapsed from his clocking off in the afternoon at 4 p.m. Bollen J said (61,279) that the Sergeant “cannot have known of Dr Dawson and of his opinion. But from his experience as a police officer as well as from ordinary knowledge he must have known or should have known of the risk ... that sleep would suddenly hit a man who had been deprived of sleep during that day.” The police Sergeant knew that before he committed the plaintiff to driving the police van alone.
Here, there was no order from the defendant requiring Mrs Kuhler to drive for at least forty minutes or so to get home, although the reality, which the defendant would have appreciated, was that its employees would be using private transport to get home; it provided a carpark for their use. The defendant knew where the plaintiff lived, but when she entered its employ she had lived much closer, considerably less than half the time and distance away of Jimboomba.
The plaintiff pleaded her case as follows:
“The plaintiff's said car crash and resultant injuries were caused by the negligence of the defendant its servants or agents.
Particulars of Negligence
The defendant by its servants or agents was negligent in that:
- (a)It failed to ensure that the plaintiff was fit to drive after she had completed her said shift;
- (b)It required the plaintiff to work a twelve hour shift overnight when it knew or ought to have known that such a shift would make the plaintiff extremely tired with the resultant risk of falling asleep whilst driving home;
- (c)It failed to ensure that the plaintiff had a means of getting home after working the said shift which did not oblige her to drive herself;
- (d)It failed to ensure that the plaintiff had an opportunity to become physically adjusted to working all night without becoming overtired at the end of the shift;
- (e)It required the plaintiff to work for too long a period of time during the night when it knew or ought to have known that the plaintiff would become overtired with the resultant risk of injury.”
The case presented at trial was, in my view, considerably different, although Mr Geraghty insisted it came within (d). Mr Griffin QC, for the defendant by election, did not seek to prevent the plaintiff's reliance on Dr Morrison's formulation of what went wrong, which was both more complex and more persuasive than the pleaded case.
The plaintiff was accustomed to work shifts commencing at 3 p.m. which nominally ended at 11.30 p.m., but almost inevitably involved overtime, and might go until 1.30 a.m. The Friday shift began earlier, at 1 p.m., and, typically, was considerably shorter. The plaintiff had no difficulty with her fairly heavy workload. The defendant wished to increase production. Working on Saturdays had been tried, but seemed not particularly popular with employees. A new approach, apparently seen as temporary only, came into operation from Monday, 14 March 1994. This involved production continuing throughout the night, a couple of nights a week. The employees were all members of a union. They were at odds as to whether the “day” workers or the “evening” workers ought to be assigned the unpopular hours centring on 3 a.m. to 5 a.m., which no-one wanted. The outcome was immaterial to the defendant, except that it doubtless wanted industrial peace. It is a reasonable inference that representatives of the union (the AMIEU) participated in the outcome which was that the “evening” shiftworkers lost out. It could not be suggested that the involvement of the union would protect the employer if the new roster amounted to a breach of its duty of care to any of its employees. The new roster involved delaying the commencement of the Monday and Wednesday shifts to 5.30 p.m. (it may have been 6.30 p.m. in the first week) and extending those shifts to 5.30 a.m. the next morning, or thereabouts. The defendant appears to acknowledge an entitlement in the employees to cease work after having done eight hours. On the employees' side, even if that was understood, there was reluctance to refuse to work extra hours if the defendant wanted them worked. As it happens, none of the so-called “twelve hour shifts” ever lasted as long as twelve hours in the plaintiff's case, at any event.
While it cannot be reasonably doubted that a twelve hour shift would be tiring, the plaintiff was well accustomed to working for that number of hours (or nearly that number). The real vice of the new arrangement was that after the Monday and Wednesday shifts, the plaintiff was not back home and able to go to bed until daylight, indeed, at the time when the sleep “latency” factor (as Dr Morrison termed it) would be at its level of longest duration, making it more difficult for the plaintiff to fall asleep. What Dr Morrison says is in line with what I would take to be common experience that it is much easier to get to sleep when it is dark than when it is light; he adds the detail that it is hardest of all around 8 or 9 a.m. He prepared the following table, with the assistance of the plaintiff, to show her working and sleeping patterns in the fortnight before the defendant introduced its new shift roster:
TABLE 2
WORK | SLEEP |
| BEGIN | END | HRS:MIN |
| BEGIN | END | HRS:MIN |
M | 15:00 | 01.30 | 10:30 | M/Tu | 02.30 | 10:30 | 8:00 |
Tu | 15:00 | 23:30 | 8.30 | Tu/W | 00:30 | 09:30 | 8:00 |
W | 15:00 | 00:30 | 9:30 | W/Th | 01:30 | 09:30 | 8:00 |
Th | 15:00 | 01:30 | 10:30 | Th/F | 02:30 | 09:30 | 7.00 |
F | 13:00 | 20:00 | 7:00 | F/Sa | 23:00 | 08:00 | 9:00 |
Sa | - | - | - | Sa/Su | 22:30 | 07:30 | 9:00 |
Su | - | - | - | Su/M | 22:30 | 07:30 | 9:00 |
M | 15:00 | 01:30 | 10:30 | M/Tu | 02:30 | 10:30 | 8:00 |
Tu | 15:00 | 23.30 | 8:30 | Tu/W | 00:30 | 08:30 | 8:00 |
W | 15:00 | 00:30 | 9:30 | W/Th | 01:30 | 09:30 | 8:00 |
Th | 15:00 | 01:30 | 10:30 | Th/F | 02:30 | 09:30 | 7:00 |
F | 13:00 | 20:00 | 7:00 | F/Sa | 23:00 | 08:00 | 9:00 |
Sa | - | - | - | Sa/Su | 22:30 | 07:30 | 9:00 |
Su | - | - | - | Su/M | 22:30 | 07:30 | 9:00 |
TOTAL | 92:00 |
|
|
|
|
| 116:00 |
AV/DAY | 9:12 |
|
|
|
|
| 8:17 |
(The second Friday would appear, from the defendant's records, to have been a day off.)
He then prepared a Table showing her experience after the change:
TABLE 3
WORK | SLEEP |
|
| BEGIN | END | HRS:MIN |
| BEGIN | END | HRS:MIN |
M | 14/3 | 18:30 | 05:35 | 11:05 | M/Tu | 08:00 | 12:00 | 4:00 |
Tu | 15/3 | 15:00 | 00:20 | 9:20 | Tu/W | 01:00 | 08:30 | 7:30 |
W | 16/3 | 18:30 | 05:30 | 11:00 | W/Th | 08:00 | 12:00 | 4:00 |
Th | 17/3 | 15:00 | 00:20 | 9:20 | Th/F | 01:00 | 07:00 | 6:00 |
F | 18/3 | 13:00 | 19:55 | 6:55 | F/Sa | 23:00 | 08:00 | 9:00 |
Sa | 19/3 | - | - | - | Sa/Su | 23:00 | 08:00 | 9:00 |
Su | 20/3 | - | - | - | Su/M | 23:00 | 08:00 | 9:00 |
M | 21/3 | 17:30 | 05:00 | 11:30 | M/Tu | 08:00 | 12:00 | 4:00 |
Tu | 22/3 | 15:00 | 00:20 | 9:20 | Tu/W | 01:00 | 08:30 | 7:30 |
W | 23/3 | 17:30 | 05:00 | 11:30 | W/Th | 08:00 | 12:00 | 4:00 |
Th | 24/3 | 15:00 | 23:50 | 8:50 | Th/F | 01:00 | 07:00 | 6:00 |
F | 25/3 | 13:00 | 20:05 | 7:05 | F/Sa | 23:00 | 08:00 | 9:00 |
Sa | 26/3 | - | - | - | Sa/Su | 22:00 | 07:00 | 9:00 |
Su | 27/3 | - | - | - | Su/M | 22:00 | 06:00 | 8:00 |
M | 28/3 | 17:39 | 05:19 | 11:40 | M/Tu | - | - | - |
Tu | 29/3 | - | - | Accident |
| - | - | - |
TOTAL |
|
|
| 107:35 |
|
|
| 96:00 |
AV/DAY |
|
|
| 9:43 |
|
|
| 6:51 |
I find that the entries for hours at work, which are taken from the defendant's records, are accurate. The figures for sleeping time must be approximations only, based on reconstruction, although the plaintiff herself for some reason stoutly maintained in the face of some challenge that they were accurate.
One of Mr Griffin's points was that the plaintiff, who said, unsurprisingly, that the new shift roster caused her to become tired - along with two co-worker witnesses Yvonne Hyde and Jill Vanstone (by contrast with Christine Brittain and Tony Guirreri, whom the defendant by election called) - had a considerable period of time to recover from when she left work at 8.05 p.m. on Friday evening until she was required back at 5.30 p.m. on Monday afternoon on 28th March. Indeed, she had the opportunity for a lengthy sleep on the night of Thursday/Friday, although electing to rise at 7 a.m. after the roster change on Friday, whereas previously she had slept until 9.30 a.m. on Friday. Dr Morrison's response (p. 98) was:
“..after this two weeks of continuously working on the rotating shift that she was obliged to work on, her average sleep duration had been very substantially reduced from eight hours 17 minutes in Table 2 in my report to six hours 51 which is a duration - an average duration which the balance of probability is against being enough for her, so that she would have a substantial sleep deprivation accrued over that two week period which would take several days or maybe even a week to get over.”
While I take Dr Morrison's general point, I cannot regard the plaintiff's figures for her actual sleep as sufficiently accurate to support the results in the Tables for “average sleep duration”. I gained no clear idea from this answer, or other evidence, of the effects of “substantial sleep deprivation accrued” as referred to, or the likely recovery period necessary. Dr Morrison's evidence was that a weekend, far from allowing a sleep deprived person to recover, has the opposite effect, if, as he supposed would usually happen, the life of a “day person” was lived. His evidence in chief contained the following:
“Are there problems with this sort of arrangement for shift work and in summary what are they - the alternating of different shift times day by day; is that a problem?-- Yes, there are several problems with the shift which the plaintiff was required to work in the last two weeks of her employment with this employer. One of the problems, as you allude, is the nature of the rotation of the shift work which, on alternating days, the plaintiff was expected to work on nights and on the alternate days on afternoon or evening and those two are - you really could hardly have more opposite shifts in the sense that the night work required the plaintiff to sleep in the daytime whilst the daytime and evening work allowed the plaintiff to sleep at night and it is a well-known principle of shift management that if you require a worker to work at night and sleep in the daytime you must give that worker a number of days over which to acclimatise to the new different setting of the body's clock. The body's clock in most of us sends us off to sleep at night and causes us to be aware and alert in the daytime. To be on night shift requires the body's clock to be reset to the converse situation and that resetting takes a number of days to come about. It cannot come about after a single day. That is one of the problems. Another problem with this particular shift structure is the return time. Now, the return time is the time between the end of one work period and the beginning of the next and for most day workers that would be about 16 hours, that is to say there would be at least 16 hours, from the end of one work period to being required to work again. It appears from the work shift that the plaintiff was expected to adhere to during the final fortnight before the accident that on at least two occasions per week her return time was significantly less than 16 hours and there are, in fact, international recommendations that return times should be a minimum of 16 hours and preferably more than that.”
And are there any other problems apart from those two? What about the length of that-----?-- The length of the shifts - approximately 12 hours - the overnight periods - that is a little controversial. Strict theory would predict an eight shift to be better than a 12 hours shift. However wide experience published in the literature shows that workers themselves prefer a 12 hour shift probably because it gives them more days off at the end of the block of work. However that argument would not apply in this case where the worker was not permitted to gam acclimatisation to working a 12 hour shift overnight.
Given that an employer wanted employees to work say 12 hours or 11 hours or whatever it might be between 5.30 p.m. and 5 or 5.30 a.m. what would be the proper - in your view the proper way of going about that?-- At the beginning of the night shift period you should give the worker a minimum of 16 hours break from the previous shift block - that is, the return time should be at least 16 hours and preferably more. When you make the shift you should make it in an advance direction not in a retard direction - that is to say, you should go from an early shift to a later. For example, from afternoon to night or from night to morning or from morning to afternoon, not the reverse direction. So those would be two requirements. The third requirement would be that for every day of the working week or working fortnight or whatever it is the shift should be the same and if it's night work then it should be night work every night and not alternating between night and day work on alternate days. Those would be the main requirements. It goes without saying that a reasonable number of days off should be permitted.
In this case we - the accident to which your attention as directed occurred in the early hours of Tuesday morning and she'd started work at 5.30 on the Monday and before that she'd had the weekend of basically, the Saturday, the Sunday and had - had the Monday up until she started work off; does that - would that be - enable her to feel refreshed or what effect, if any, would that have?-- I very much doubt whether that weekend would allow her to feel refreshed after a 12 hour shift of work on Tuesday morning and the reason I say that is that the period of her life over the weekend would have been normal life. That is, being awake in the day time, asleep at night. So that when she turned up for work on the Monday, on the Monday evening as - around 5 o'clock as I recall - she would be near the end of an aware period and ready to head for an asleep period. So she would have been totally unacclimatised. The more so in fact that if she had been working on nights over that weekend.”
Although Dr Morrison went on to say that as at March 1994 this sort of information was readily available if one made inquiry of a research specialist, the plaintiff has not shown, any more than did the plaintiff in Dredge, that the defendant or its personnel knew of the principles and opinions espoused by Dr Morrison. I agree with the views expressed by Bollen J in that case at 61-279 as to the argument that the institution of the new roster system constituted a breach of the defendant's duty of care to the plaintiff:
“...I acknowledge the force and ‘purity’ of the evidence of Dr Dawson. I use the word ‘purity’ to acknowledge the scientific value of his evidence on this score, to acknowledge the soundness of his evidence as a scientific matter or as a counsel of perfection. But perfection by an employer is not required. An employer is not to take perfect steps to avoid an accident. He is no insurer of his employee. Reasonable steps to safeguard an employee from danger are all that is required. I cannot find against the defendant on ‘unsafe roster’ in the state of evidence. Much more evidence would be needed to justify such a finding. Evidence of alternative ways of preparing a practicable roster, of the number of men available, of the incident of accidents or near misses suspected to have been caused by fatigue, of complaints of officers and of other matters, not presently occurring to me, would be needed. Some evidence of a change in the roster after this accident was given by the plaintiff. A command circular of 19th January 1987 was proved. That circular is in general terms. It concludes with an injunction to field supervisors to ensure members are not endangered by fatigue’.
The evidence does not go so far as to prove in the context of obligations of master to servant that the roster was not, for practical purposes safe. I do not reject as wrong the opinion of Dr Dawson. I say it has not been addressed to reasonable care as the law knows that concept.”
If authority be needed for what is expressed in that passage, Mr Griffin supplied it by reference to Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 318:
“The accident was one that arose in the ordinary course of the plaintiff's employment, the kind of happening for which the system of workers' compensation is designed to provide. But it had unexpectedly serious consequences; and the plaintiff brought this action for damages against the brewery company. He alleged that it had failed to take reasonable care for his safety, had failed to provide suitable plant and equipment, to devise and maintain a safe system of work and so to conduct its operations as not to subject him to unnecessary risk. These phrases are the commonplaces of this branch of the law of negligence. The vigorous assertion of them may sometimes obscure for juries the essential simplicity of the issues in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils. ‘The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle.’ That statement, made by Lord Keith of Avonholm in Cavanagh v. Ulster Weaving Co. Ltd.[1] was repeated and approved in the House of Lords in Brown v. Rolls Royce Ltd.[2] The latter case and Neill v. N.S.W. Fresh, Food and Ice Pty. Ltd.[3] establish that the legal burden of proving an absence of reasonable care on the part of a defendant employer remains on the plaintiff workman throughout.”
McTiernan, Kitto, Taylor & Owen JJ agreed with that statement by Windeyer J.
The point of all of this is that it is difficult to find the plaintiff has satisfied the onus of showing the defendant failed to take reasonable care when it brought in the new regime of alternating shifts. It is not shown that Dr Morrison's precepts were common currency or anything like it. The plaintiff was not the only one to experience difficulty once the new roster got under way. She was not the only one to have a car accident driving home; Jill Vanstone did, and on one occasion fell asleep at work. Regrettably, although the defendant had systems in place to lead to the reporting of problems experienced along these lines, no reports of problems were made. On the evidence those who felt compelled to remain on what had become a “night” shift (they would, I think, have been allowed to switch to “day” work had they wished) may have “grumbled” among themselves, but news of their difficulties went no further, until the plaintiff had her accident, which must at least have raised a question for the defendant as to whether or not the new roster with its formal twelve hour shifts played any part. The new roster did not last long. However, the reasons for its demise appear to have been that (as Dr Morrison would have predicted) production did not increase and, more importantly, that the reduced frequency of cleaning of the production areas that continuous operation brought about led to an increase in bacteria detected and serious concern in the Q.A. (Quality Assurance) Department.
Assuming I were able to find the breach of duty the plaintiff contended for, in introduction of the new roster, she faces an insuperable barrier in establishing a causative link between any such breach of duty and the accident in which she was injured. The considerations here overlap very much with those bearing upon what ought to be regarded as foreseeable by the defendant. Mrs Kuhler, like any employee, must surely be treated as having both the freedom and the responsibility to decide what she does in her own life, outside her employment. An employer may establish a system of work (for present purposes a shift or roster system) which seems entirely reasonable, in the sense that one would expect the employees to be fit to get home after work. That involves an assumption that the employee is not jeopardizing the situation by activities outside the workplace. I accept that an employer ought not to send an employee out who is drugged, stupefied or disoriented from work or liable to fall asleep. But there may be intervening factors an employer can foresee, yet do nothing about, such as the employee stopping somewhere outside the workplace and drinking to excess before driving on. Whatever happens to such employee surely becomes his or her own business and responsibility. If the employer establishes a reasonably safe system, it is simply not possible, in the conditions of our society, for the employer to go further and look into the private lives of employees, to ensure that nothing there is liable to make an employee particularly tired, for example. As Mr Griffin put it:
“He cannot administer interrogatories to the employee. He can't say ‘did you have a big night last night - did you stay up all night watching videos or television or something like that.’ It all interacts and it would cast an intolerable burden on an employer if the employer had to do something other than say, ‘well, we will put the system into place and it will determine whether you are getting too tired to drive.’”
Where the employer is not on notice of difficulties affecting employees the principles of Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville Q.L.R. 14.9.96 come into play.
In this case, it is plain that various features of the plaintiff's lifestyle added to her work commitments to deprive her of sleep. Not the least of them was that only six months or so before her accident she and her husband moved from Redland Bay Road to Jimboomba, which meant a 40 minute trip to and from work. In fact, the plaintiff seems to have allowed an hour to get to work. She and her husband, who works as a truck driver, breed blue cattle dogs, for which she appears to have taken more responsibility. The daily requirements of the dogs to be fed and exercised were not only time consuming, but required the plaintiff to get up earlier than she might have otherwise on occasions and on others to go bed later than she might have otherwise. Mr Kuhler usually left for work about 6.45 a.m.; Mrs Kuhler liked to get up at about 6 a.m. with him to prepare his lunch and see him off, apparently the reason why she rose at 6 a.m. on the Monday of her last ill fated shift with the defendant. On the weekend leading to it, the plaintiff did far more than engage in restorative activity, or inactivity. She and her husband rose earlier than usual on the Saturday because they were showing dogs at a show at Durack, which had to be got ready. She rose earlier than usual on the Sunday morning, because arrangements had been made that she and her husband would go to the Gold Coast for the day to help her father and stepmother move house. Mrs Kuhler says she did little physical work, spending the time in the new house with her father. The result was a long day away from home, at the end of which the dogs had to be attended to. On the ill-fated Monday, the plaintiff rose at 6 a.m., a whole hour earlier than on any other day in the whole month surveyed by Dr Morrison. Yet she did not have to be at work for another 11½ hours. She had no rest during that day, but attended to housework which had been left over the weekend.
If the defendant had known of the foregoing, so that its position could be assimilated with that of Sergeant Venning, in Dredge, the plaintiff may have been entitled to succeed in her case; the defendant cannot escape the effect of knowledge which it had. But it possessed no relevant knowledge, nor would our society tolerate its being given any right to enquire. I think Mr Griffin is right that, subject to its being affected by some special knowledge, an employer is entitled to assume that its employees will comply with the general onus which rests upon all drivers to refrain from driving if they are unfit, through tiredness or any other cause. Further, I would think that an employer is justified in assuming, in the absence of other knowledge, that its employees arrive at work fit to carry out the work of the day and to get themselves home when the work is done.
Turning to the causation issue, my view is that the case would be considerably stronger had the plaintiff suffered her unfortunate accident on a Thursday morning, rather than on a Tuesday. What is enquired into is the cause of the plaintiff's becoming sufficiently tired or sleep-deprived to fall asleep at the wheel. Applying a “but for” test, it is true enough that if the plaintiff had not worked her last shift, the accident would not have happened. I can see no basis for saying, however, that the occurrence of the accident was more likely than if she had worked from 3 p.m. to 1.30 a.m., which was the earlier pattern of her Monday shifts. It seems the plaintiff would do those shifts after awaking at 7.30 a.m. (See Table 2). The link between her accident and her work is made more remote by her private decision to get up on 28th March 1994 an hour and a half earlier than she used to do, although her work shift was to start 2½ hours later.
I cannot conclude that it was the plaintiff's work activities which caused her to suffer from sleep deprivation. It is reasonable to assume Mrs Kuhler was at her worst, from the point of view of sleep deprivation, when she finished work very late on the previous Thursday night. According to her previous sleep patterns, she could have slept until 9.30 a.m. or 10.30 a.m. (from 1 a.m.) and had nine hours, sleep, which seemed to be the maximum duration of any sleep of hers. Yet, she rose at 7 a.m., after only six hours' sleep. On the evidence, this early rising would not be linked with seeing Mr Kuhler off to work; perhaps the explanation is the needs of the dogs. Next morning, the plaintiff rose at her usual Saturday time of 8 a.m., after nine hours' sleep. One would think that if she felt she needed more sleep, she could have remained in bed, but for the exigencies of the dog show at Durack. On the Sunday morning, she rose earlier than on any other Sunday for which we have a time, this time to assist in her father's move on the Gold Coast. The following morning, Monday 28th march, she rose at 6 a.m., the earliest time of rising on record. She had enjoyed eight hours' sleep, whereas she had not hitherto risen on a Monday morning without having had nine hours.
At Page 98, Dr Morrison took Mr Griffin to task for suggesting that the figures for sleep in Table 3 could be “altered”. As a matter of common sense, Mr Griffin is right. If Mrs Kuhler had taken nine hours' sleep before rising on the 16th, 18th, 23rd, 25th and 28th, which would not have meant sleeping in past 10 a.m. on any day, and if she had added an hour to her four-hour day time rests on Tuesdays and Thursdays, she would have averaged more than eight hours sleep, which is considerably more than the 6 hours 51 minutes she says was actually achieved, and comparable with the 8 hours 17 minutes she took before the roster change. I accept Dr Morrison's criticisms of an irregular sleep pattern, in particular what he said regarding the difficulty of falling asleep in the day time, if that is not the pattern of one's life. I cannot avoid the conclusion that it was what the plaintiff elected to do with her own time, rather than the impact on what she might have done of her work obligations to the defendant, that was the true cause of any micro-sleep, when she dozed off at the wheel. I would say it is her responsibility, rather than the defendant's, that, when this happened, she had been without rest for almost 24 hours. If she had established she could not sleep during the day, it was presumably open to her to go to bed later on Sunday night.
In relation to the plaintiff's falling asleep, I think there is a true analogy with the novus actus interveniens cases, such as some of those in which an injured plaintiff becomes drug-addicted (e.g. Yates v Jones (1990) Aust. Torts Rpts 81-009, special leave refused by High Court (1990) 19 Leg. Rep. S.L. 2) or acts irresponsibly, (as in Nicolson v Tucker (1984) Aust. Torts Rpts. 80-512, in which the injured plaintiff snapped a dowel which had been inserted only two weeks before in his cervical spine by lifting a motor mower to a height of five feet). I have already indicated that causation and foreseeability issues are closely related in this case. Given the knowledge which the defendant had (in fact it was completely uninformed of relevant information which the plaintiff had herself, such as the debilitating effect of the new roster on some employees and Jill Vanstone's accident) it becomes extremely problematical to regard the accident as something foreseeable from the defendant's point of view. I think Mr Griffin was correct in his submission that the defendant was justified in assuming that the plaintiff, like any responsible driver, would refrain from driving if she were too tired. For what may be an analogous case, of a Foreign Affairs officer with an extreme reaction to a “hardship” post, see Gillespie v Commonwealth of Australia (1991) 104 A.C.T.R. 1, affirmed (1993) Aust. Torts. Rpts. 81-217.
It remains for me to assess damages, against the prospect that the Court of Appeal takes the view that the plaintiff established her claim. She is a young woman born 14th May 1967, educated to Year 10 standard. She worked in a supermarket for some years, then after a couple of weeks only in a nursery, as a process worker for the defendant. Her significant injury in the accident was to her cervical spine with subluxation of C6 on 7. She was taken to Beaudesert Hospital (from which I have no report) and treated conservatively with immobilization in a hard cervical collar. The treatment was not effective and she found herself admitted to Princess Alexandra Hospital on 22nd April 1994 for a period of skeletal traction; there, on 27th April 1994 she underwent an anterior cervical fusion with bone graft and fixation of the C6/7 disc. She was discharged on 1st May 1994. I take her date of discharge (in a soft cervical collar) to be 1st May 1994, rather than 1st May 1995 as recorded in Exhibit 1 by Dr Curtis and Exhibit 3 (a report from P.A. Hospital, which includes also what I surmise to be the correct date), given that the latter bears a Workers' Compensation Board “received” stamp of 1st June 1994. The plaintiff's progress was complicated by the development of a recurrent laryngeal nerve palsy which recovered after a few months. Mr Kuhler took some weeks off work to assist his wife and her mother, for the same purpose, came from Melbourne for a few days after the accident, and a couple of weeks after the operation, for periods when the plaintiff required most assistance. She got back to work by the end of 1994, but not with the defendant. Dr Curtis confirms she has a permanent disability of some 5% impairment of the whole person; her problem is summarized as continued discomfort in her neck after sustained posture, particularly with her neck flexed forward. There is moderate restriction of movement. The plaintiff has not returned to her former sport of netball for fear of the consequences of injury. Her new employment with Hans Smallgoods, also as a process worker, from her point of view does not involve as much bending forward of her head as her employment with the defendant. There is a diminution in what the plaintiff earns in this new employment. I took her to assert that the overtime she was permitted or required to do by the defendant was not wanted by her. Mrs Kuhler sought to establish her past economic loss by comparing her actual earnings with those of an employee carrying out similar duties, Barbara Bold, who continued. That is a reasonable exercise, but I consider some discounting has to be allowed to reflect the chance that factors such as the unwelcome overtime or the cumulative effect of driving between Cleveland and Jimboomba might have led to the plaintiff leaving the defendant in any event. Mr Geraghty claimed $30,000 under this head, which is assessed at $27,000, discounting the plaintiff's claimed loss of $6,000 per annum by $1,000 in each year. Interest at 6% for two years (on $18,000, having regard to the actual receipt by the plaintiff in the first six months of weekly workers' compensation benefits,) is $2,160. General damages I assess at $22,500, the case appearing to me comparable with Radel v Larson, Gladstone No. 8 of 1994, Nase DCJ, 9th March 1995, which Mr Geraghty supplied to me (the plaintiff there was younger, but had not undergone an operation). The general damages allow for the slim chance that the plaintiff may in future undergo the surgery referred to by Dr Curtis. I fix $11,000 as the component attributable to the past and allow $550 interest. The plaintiff's claim for future economic loss, for reasons adverted to above and in deference to the many other contingencies that may arise, has to be considerably discounted. I would allow a global sum of $17,500. Medical and other expenses, which have been covered by the Workers' Compensation Board, amount to $795.54. I allow $3,000 for the Griffiths v Kerkemeyer claim, discounting Mr Geraghty's claim to acknowledge the inappropriateness, in my view, of allowing in full services in the care of the dogs with respect of which I would say the plaintiff's “need” is arguable. Mr Geraghty claimed a Fox v Wood component of $1,897.50, but resiled from the claim when he recalled the Court of Appeal's decision in Arndette Pty Ltd (In Liq) v Thurlow (Appeal 274 of 1995, 20th August 1996) in which it was held that where that component is referable to the most recent four years, a Taxation Department ruling permitting refund of that tax upon application to the Commissioner means the matter is not to be included in assessments of damages. Mr Griffin conceded that the present apparent entitlement of plaintiff's to retain free from depradations of the revenue authorities the full amount of the past economic loss as awarded by a court may be somewhat “fragile” to use his word; it cannot be said how long it will last, but such is the present situation.
With some regret, I order the plaintiff's action be dismissed, and will do so with an order for costs against her, to be taxed, unless any party successfully submits to the contrary on receipt of these reasons. Allowing the claim to succeed would, in my view, involve a radical expansion of employers' liability, in a society in which shift work is extremely common, and, for all I know, alternating shifts of the kind briefly employed by the present defendant. Dr Morrison told me that work has not been done, so far as he knows, on the effect of “moonlighting” on an irregular basis on the susceptibility of those who do it to fall asleep unexpectedly. If the requirements upon employers are to be expanded, that is more appropriately done by an appellate court. The present case is far from being a clear test of alternating shifts given the plaintiff's unusual activity and voluntary limitation of her sleep over the 95 hours or so before her accident.