Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : FRASER (nee BUTCHER) -v- BURSWOOD RESORT (MANAGEMENT) LTD [2012] WADC 175

Tort - Negligence - Employer duty of care - Scope of duty to night-shift workers - Duty to warn against risks of driving after night-shift - Duty to alter shift times

Causation - Onus of proof - Legal onus remains with plaintiff throughout the trial - Shift of evidentiary onus - Whether defendant's breach caused the plaintiff's injury

Appeals - Error of fact - Whether trial judge failed to draw inferences that should have been drawn from the facts - Whether conclusions of trial judge ought be reversed

Civil Liability Act 2002 (WA), s 5C

Adler v Australian Securities and Investments Commission [2003] NSWCA 131

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Betts v Whitingslowe [1945] HCA 31; (1945) 71 CLR 637

Commissioner of Main Roads v Jones [2005] HCA 27

Czatyrko v Edith Cowan University [2005] HCA 14

Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151

Fitzpatrick v Job trading as Jobs Engineering [2007] WASCA 63

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Fraser v Burswood Resort (Management) Ltd [2012] WADC 175

Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2006] QCA 335

Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470

Jones v Bradley [2003] NSWCA 81

Kuhl v Zürich Financial Services Australia [2011] HCA 11; (2011) 243 CLR 361

McGhee v National Coal Board [1972] 1 WLR 1

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359

Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269

Richard Evans & Co Ltd v Astley [1911] AC 674

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255

1 At 4.00 am on 10 December 2001, Tracey Kathleen Fraser (the appellant) finished her eight-hour shift as a croupier at the Burswood Casino. She changed out of her uniform and at about 4.10 am started driving to her home at Meadow Springs near Mandurah. Half an hour later, at about 4.40 am, the car which she was driving along a straight stretch of sealed dual carriageway road, then known as Fremantle Road (now Mandurah Road), left the sealed section of road and entered a gravel section of the verge to the left of the lane. Ms Fraser attempted to turn her vehicle to the right, back on to the sealed carriageway and braked heavily at the same time. As a result of her overbraking and oversteering, the vehicle travelled diagonally right across the carriageway. The wheel or wheels on the right-hand side of the vehicle entered the median strip, causing the vehicle to roll over four or five times before coming to rest in the median strip. At one point the vehicle was airborne. Ms Fraser was seriously injured and suffers from continuing disabilities as a result of the injuries.

2 Ms Fraser was travelling within the applicable speed limit (110 kmh), and there was no evidence that the vehicle suffered any mechanical fault or failure prior to rolling over. Sunrise that day occurred a little over 20 minutes after the accident, which took place in the pre-dawn light.

3 Ms Fraser claimed damages from her employer, the respondent, Burswood Resort (Management) Ltd (Burswood). She claimed that the accident occurred as a result of her falling asleep while driving home and asserted that Burswood breached a number of duties which would have reduced the risk of that occurring.

4 The trial judge found that Ms Fraser had not established that the accident was caused by her falling asleep at the wheel. He also found that even if Burswood had performed the duty of warning Ms Fraser of the risk of falling asleep while driving home, it would not have altered her actions or the events which occurred that morning. For those reasons he dismissed her claim for damages.

5 Ms Fraser appeals against those findings on various grounds. For the reasons which follow, the critical findings made by the trial judge with respect to the cause of the accident should not be disturbed, and the appeal must be dismissed.

6 The trial judge commenced his reasons[1] with a review of the pleadings and the principal arguments advanced by each of the parties. As he noted, the plaintiff asserted that the accident occurred because she 'momentarily fell asleep' and that Burswood's breach of duty caused or contributed to her momentarily falling asleep. The duties which Burswood owed to Ms Fraser were said to arise from the failure of Burswood to warn Ms Fraser about, or mitigate the effects of the circadian cycle upon workers required to work night-shifts. The circadian cycle is the biological rhythm which is adopted by the human body as a result of normally sleeping at night during the hours of darkness. As a result, night-shift workers often find it harder to sleep during the hours of daylight, with the result that they sleep less than other workers. Over time, the reduced hours of sleep can cause what was described at trial as 'accumulated sleep debt', which causes fatigue and, if significant, a risk of falling asleep. Further, the circadian cycle makes it more likely that workers, especially those with accumulated sleep debt, will fall asleep during the hours of darkness. That risk is greater if the worker is not actively engaged in working activities which require significant physical or mental application undertaken in a well-lit environment, which will have the effect of 'masking' the worker's underlying fatigue or tiredness.

7 As the trial judge noted,[2] although the statement of claim contains various particulars of negligence, in essence Ms Fraser claimed that Burswood had breached its duty of care in two respects:

(a) by not adjusting her shift so that it did not finish in the pre-dawn hours, which were said to be between 2.00 am and 6.00 am;

(b) by not warning her of the increased risk of falling asleep while driving home because of the possibility of accumulated sleep debt and the circadian cycle making it more likely that she would fall asleep during the hours of darkness than during the hours of daylight.

Ms Fraser asserted that if her shift had finished before 2.00 am, the risk of her falling asleep while driving home would have been reduced because she would not have been so tired. She also asserted that if her shift had finished at or after 6.00 am, the risk of her falling asleep while driving home would have been reduced because she would have been driving in the hours of daylight. Her case was also conducted on the basis that if Ms Fraser had been warned of the risk of falling asleep while driving home in the hours of darkness, she might have either waited at her place of work until it was light before driving home, or asked to be placed on a shift which finished at or after 6.00 am, and that had she done either of those things, she would not have fallen asleep while driving home.

8 The trial judge also noted that the parties had agreed that the quantum of loss and damage suffered by Ms Fraser as a consequence of the injuries sustained during the accident was $1,000,000 plus special damages.[3]

9 The trial judge reviewed the evidence given by Ms Fraser in his reasons.[4] The following summary of evidence comes from that review. Later in these reasons I will refer to certain specific aspects of Ms Fraser's evidence.

10 Ms Fraser was born in England in 1970. At the time of her accident she was 31 years of age. Before migrating to Australia in February 2001, she had worked for two casinos in England. She worked for one of those casinos for over eight years as a dealer and also as an inspector. While working for that casino she worked both day-shift and night-shift. When she worked night-shift, she would work from 9.00 pm until 4.00 am, unless she was required to 'count the money' which happened about once a week and required her to stay an extra two hours.

11 After migrating to Australia, she applied for a position at Burswood Casino. In April 2001, she accepted an offer of employment from Burswood, and commenced work as a croupier on 26 April 2001. Performance appraisals undertaken by Burswood during May and August 2001 showed that Ms Fraser was performing her duties as a croupier to a high level and to the complete satisfaction of Burswood.

12 Ms Fraser only ever worked night-shifts at Burswood. Generally her night-shifts started at 8.00 pm and finished at 4.00 am, although on some occasions she was asked to do overtime until 6.00 am, and on other occasions her shifts finished at 2.00 am.

13 At the time she commenced work with Burswood, Ms Fraser purchased new a Toyota Echo motor vehicle, which is a small sedan. The vehicle had been serviced a week prior to the accident, and the only defect identified was a puncture caused by a nail in one of the rear wheel tyres which was repaired.

14 The plaintiff was living with her partner and daughter at Meadow Springs, near Mandurah. It took 50 or 60 minutes to drive from her home to Burswood. She would drive to work and park in the parking area which Burswood provided for its employees. On arrival, she would generally collect her clean uniform and change into the uniform in the locker room, before commencing work. Upon the completion of her shift she would change out of her uniform in the locker room, hand it in, and leave. Although showers were available, she did not shower at work and it was her general practice to leave work as soon as she could, so as to get home in order to get 'a good eight hours sleep'. When her shift finished at 4.00 am, she would generally leave at about 4.10 am, arriving home around 5.00 am.

15 Just prior to the accident, Ms Fraser had a nine-day break from work before recommencing her shifts at 8.00 pm on Friday, 7 December 2001. She worked until 4.00 am the following morning, returning to commence her shift at 8.00 pm that evening (Saturday). On that occasion she worked through until 6.00 am on the morning of Sunday, 9 December 2001. She returned at about 7.35 pm that evening, before commencing her shift at 8.00 pm. She completed that shift at 4.00 am on the morning of Monday, 10 December 2001 and then followed her usual routine - changing out of her uniform before leaving work at around 4.10 am.

16 In his reasons, the trial judge set out portions of the evidence given by the plaintiff in relation to the circumstances of the accident. As I will be addressing that evidence later in these reasons, it is only necessary at this point to identify the findings which the trial judge made based upon that evidence. In relation to the critical issue of whether Ms Fraser fell asleep before her vehicle left the road, he summarised her evidence in the following terms:

[S]he thinks she fell asleep because she lost control of the vehicle. She did not give direct evidence of personal knowledge that she knew she had a sleep, or fell asleep, because she remembered going to sleep or waking up. It is merely supposition or conjecture on her part that she must have fallen asleep, on her case for a microsecond. Her evidence in this regard was less than certain.[5]

17 The trial judge also described Ms Fraser's evidence with respect to the statements which she made to police on 28 December 2001 as equivocal on the subject of whether she had fallen asleep,[6] and noted that the written statement which she made to police at that time included the following passage:

I do not know why the accident happened. Possibly I dropped off for a moment, however, I have no history of blackouts or similar and I have made this same trip from Perth to home since April this year without encountering any prior problems.[7]

18 The trial judge also noted that Ms Fraser signed a written statement prepared by a private investigator relating to the circumstances of the accident. That statement included the following:

I must have dosed [sic] off behind the wheel momentarily and when I heard the noise I panicked and braked heavily.[8]

The trial judge characterised this statement as being 'consistent with her evidence to the effect that she assumed she must have "dozed off behind the wheel momentarily"'.[9]

19 He considered an answer Ms Fraser gave during cross-examination relating to the cause of the accident, in the context of the statement made to the private investigator, to be critical to determining the cause of the accident. Her view as to the cause of the accident at the time she made the statement to the investigator was:

I believed that I'd braked too heavily and, because I'd over-steered, the car had gone out of control.[10]

20 Finally, the trial judge reviewed evidence given by Ms Fraser as to what she would have done if she had been warned that there was an increased risk of her falling asleep at the wheel when driving home after ending her shift at 4.00 am. After reviewing that evidence, he was:

[N]ot persuaded that the plaintiff would, even if the risk had been brought to her attention and she had been given the choice, that she would remain back until 6.00 am (or after sunrise). [11]

21 In this context the trial judge considered that:

It is noteworthy that at the time of her accident there was a degree of pre-dawn light even though the sun had not actually risen. It was not dark.[12]

22 Apart from Ms Fraser, the only other person who observed the accident and gave evidence was Mr Herbert Hollier. At about 4.40 am on the morning of 10 December 2001 he was travelling north on Fremantle Road, in the opposite direction to that in which Ms Fraser was travelling. He saw Ms Fraser's vehicle in the air rolling sideways. It landed nose down. He estimated that the vehicle rolled about four to six times. In a statement given to the private investigator in February 2002, Mr Hollier said the accident occurred when 'it was almost sunrise and the light would best be described as dawn light'. Consistently with that evidence, the trial judge found that 'there was dawn light at the time of the accident and that it did not occur in the hours of night-time darkness'.[13]

23 As the trial judge noted, Mr Hollier did not see Ms Fraser's vehicle until it had started rolling over. He was therefore unable to give any relevant evidence as to the cause of the accident.

24 The trial judge reviewed the evidence given with respect to the investigations conducted by police following the accident. He observed that the quality of that evidence was significantly diminished by the fact that it was given 10 years after the relevant events, with the result that the officers involved did not have a clear recollection of their investigations, and were largely dependent upon documents prepared at the time. After reviewing that evidence the trial judge concluded that he was not satisfied that any skid marks were observed at the scene of the accident. The observations made and documents prepared by police at the time were consistent with Ms Fraser's vehicle having left the sealed section of the road, moving on to the gravel shoulder to the left of the direction in which she was travelling before crossing the double carriageway at an angle of about 45 degrees then hitting the median strip which caused the vehicle to roll over.[14]

Trial judge's findings in relation to the circumstances of the accident

25 Following his review of the relevant evidence, the trial judge expressed his findings with respect to the circumstances of the accident in the following terms:

(1) At about 4.40 am on Monday, 10 December 2001 the plaintiff was driving her Toyota Echo, motor vehicle registration number MH-39547, south on Fremantle Road (now Mandurah Road), Singleton.

(2) The accident occurred on a straight stretch of sealed dual carriageway. On the left side of the road there is a dirt/gravel shoulder of unknown width which then becomes a gently rising bank with some low intermittent scrub vegetation. The distance from the solid white line marking the left side of the road to the dirt shoulder is wider than the width of a normal sedan motor vehicle. The centre median strip between the north and south lanes is very wide and flat. The median strip is sandy and contains low grassy vegetation (possibly mowed down).

(3) The road was dry and the visibility was clear. The road contained solid line white markings on both sides and a broken dotted white centre line. Power poles were located on the other side of the dual carriage way travelling north (i.e. the far side of the road from where the plaintiff was). The road was in good condition. There were no street lights in the area.

(4) The evidence is unclear as to the extent of the pre-dawn light, but the sun had not risen. It was not 'night dark'. The official time of sunrise for Perth on the day in question was 5.04 am. There is no specific expert evidence about the extent of the light. I accept the evidence of Mr Hollier that it was almost sunrise and that dawn light was present. It was not dark.

(5) No other motor vehicle was involved in the plaintiff's accident. It was a single vehicle accident. There were no passengers in the plaintiff's car. No other motor vehicle was affected by the plaintiff's rolling motor vehicle before it came to a stationary position on the median strip. There is no evidence of any vehicles travelling in the same direction on the dual carriageway near or immediately behind the plaintiff before or after the accident.

(6) The plaintiff was travelling home from work at the Burswood Casino where she had completed a nightshift which commenced at 8.00 pm and finished at about 4.00 am. At the time of the accident she had been driving for about 30 minutes.

(7) The plaintiff was driving in the left lane of the double carriageway. The plaintiff was driving at a speed less than the speed limit, which was 110km. Her vehicle moved to the left side of the lane and the road surface. I accept the plaintiff's evidence that the left wheel or wheels of her vehicle crossed over onto the gravel shoulder of the road because she says she heard the noise when it did and she felt it in the steering wheel.

(8) There is no direct evidence of a skid mark on the left side of the road from the plaintiff's vehicle, but I infer from the attending police officer's diagram (Senior Constable Zilko) of the direction of travel of the plaintiff's vehicle that there was a mark left on the road by the plaintiff's vehicle (see exhibit 15). I am not persuaded on the available evidence that there were skid marks on the bitumen surface of the road.

(9) The plaintiff panicked (as she said herself) and attempted to correct the direction of the travel of her vehicle back onto the road but lost control because she braked too heavily and oversteered. Putting aside the reason why the vehicle left the road in the first place, this was the cause of the plaintiff losing control of the vehicle and the accident.

(10) As a result of over braking and over steering, the plaintiff's vehicle travelled back diagonally across the dual carriageway to the right before the right-hand wheel or wheels entered the median strip, causing it to roll over. The vehicle rolled over at this point because of the oversteering and heavy braking. The vehicle rolled four or five times before becoming stationary on the median strip. At one point the vehicle was airborne.

(11) But for the plaintiff's heavy braking and oversteering because she panicked, if she had driven with due care and skill, she would not have lost control of the vehicle and the accident would not have happened.

(12) Mr Hollier was travelling north on Fremantle Road and first became aware of the plaintiff's vehicle when he noticed it rolling before it became stationary. He saw the vehicle airborne and impact on the front. He stopped his vehicle and went to the assistance of the plaintiff. He noticed that the plaintiff's vehicle airbag had not activated. I infer from his evidence (and his written statements at the time) that he did not see anything which might have caused the plaintiff to roll her motor vehicle.

(13) The area speed limit was 110 kph. Based on the available evidence, I am satisfied that the plaintiff was driving within the speed limit at the upper end.

(14) I will make separate findings as to the reason why the plaintiff's vehicle left the road on the left side in view of the criticality of the evidence in this case and the findings which the plaintiff contends should be made. In short, the plaintiff says she 'momentarily fell asleep' (for certain reasons). The defendant says the plaintiff's own evidence in this regard is equivocal and denies she fell asleep because, according to the plaintiff, she was alert and none of the indicators of fatigue or sleepiness were present.

(15) The plaintiff was injured as a result of the accident and unfortunately suffered permanent injury. The nature and the extent of her injuries are not in dispute. I am not persuaded that the plaintiff was rendered unconscious as a result of the accident. She was in shock.[15]

26 As will be seen, Ms Fraser's evidence to the effect that at the time of the accident she was alert and that none of the indicators of fatigue or sleepiness were present is of critical significance to the disposition of this appeal.

The expert evidence - Associate Professor Hartley

27 The only expert evidence adduced at trial was given by Associate Professor Laurence Hartley. Dr Hartley has degrees in psychology and is a fellow of the Australian Psychological Society. He works at the School of Psychology at Murdoch University. He has worked and written extensively in the area of managing driver fatigue in the transportation industry. He produced three written reports which were tendered in evidence and he gave extensive oral evidence over a number of days. As I will refer to the salient features of that evidence later in these reasons, at this point it is appropriate to focus upon the findings made by the trial judge based upon his review of that evidence.

28 The trial judge accepted that Dr Hartley was qualified to give evidence with respect to 'sleep matters', including evidence about the circadian cycle and 'masking', being issues in respect of which there is a recognised reliable body of knowledge or expertise about which ordinary persons would be unable to form a sound judgment.[16] However, the trial judge did not consider that Dr Hartley was qualified to give 'medical evidence about the occurrence of "micro-sleep" and the physiology associated with this alleged phenomenon because he has no medical training, experience or expertise'.[17]

29 On the face of it, it is difficult to see any relevant distinction between Dr Hartley's qualification to give evidence about the occurrence of 'masking' and the existence of the circadian cycle on the one hand, and evidence with respect to the occurrence of 'micro-sleep' on the other. For that reason I would construe the reasons given by the trial judge as accepting Dr Hartley's qualification to give evidence on sleep matters capable of measurement and analysis by psychologists, but not as to the physiological explanation for those phenomena, which properly fall within the field of medical science.

30 The trial judge described aspects of Dr Hartley's evidence as 'difficult to discern and follow'[18] and also expressed the view that 'there was confusion during Dr Hartley's evidence on a number of occasions.'[19] He also expressed the view that Dr Hartley was 'partisan' in relation to a specific issue.[20] As a result of that evidence, the trial judge concluded that Dr Hartley had not acted in accordance with the duty which an expert witness owed 'to the court of total impartiality in all aspects of his evidence'.[21]

31 The trial judge considered that Dr Hartley's primary professional concern was in respect of fatigue-related accidents involving professional drivers within the transport industry.[22] The trial judge expressed reservations about drawing conclusions from that area of inquiry in relation to the risks faced by shift workers driving home between 2.00 am and 6.00 am, because this was not 'comparing apples with apples'.[23]

32 The trial judge also noted that Dr Hartley conceded that the difficulty with drawing conclusions from the fact that drivers face the greatest risk of a for single vehicle crash between 1.00 am and 4.00 am in the morning, was that the data did not reveal how long the people involved in those crashes had been awake.[24]

33 The trial judge noted that during closing submissions counsel on behalf of Ms Fraser relied only on certain aspects of the lengthy evidence given by Dr Hartley. The trial judge noted that particular emphasis was placed upon the evidence given with respect to 'micro-sleeps' which Dr Hartley described as the phenomenon by which a person can fall asleep for short periods, a few seconds, or perhaps several minutes, and be unaware of the fact that they have been asleep. Dr Hartley cited studies showing that up to 50% of people experiencing that phenomenon were unaware of the fact that they had been to sleep.[25] The trial judge then observed:

The importance of this evidence is self-evident because the plaintiff contends she did not notice immediately before the accident any of the indicators of fatigue or drowsiness identified by Dr Hartley. With respect, the evidence of Dr Hartley on the issue of micro-sleep, even accepting that it is within his general field of interest, without any medical training, is insufficient to permit the court to reach a view of the possibility of a 'micro-sleep' being the cause of the plaintiff's accident. Even accepting the plaintiff's contention that the cause of the accident was a 'micro-sleep', the expert evidence adduced by the plaintiff does not permit the court to find on balance that the micro-sleep was a result of or caused by anything fairly attributable to something done, or not done, by the defendant, or as a result of (assumed) fatigue from nightshift work or arising out of the circadian cycle. Any such link is in the ether. The plaintiff has not on all the evidence proved that if she had a 'micro-sleep' it was caused, in whole or part, by the indentified [sic] risk relied upon by her to prove her claim. There was no fatigue due to accumulated sleep debt or the biological risk arising out of the circadian cycle.[26]

34 After referring to the many objections made to the admissibility of the evidence given by Dr Hartley, the trial judge went on:

With this caveat in relation to Dr Hartley's evidence about micro-sleep, according to him a micro-sleep is a loss of alertness which eventually ends in sleep, that is, sleep is the only cure. He says the loss of alertness might occur due to the circadian cycle. He did not give detailed or comprehensive evidence about the physiological reasons for micro-sleep, presumably because he is not sufficiently expert to do so.[27]

35 I digress to observe that neither the evidence given by Dr Hartley on the subject of micro-sleep, nor this portion of the reasons of the trial judge directly address the critical question of whether micro-sleep is a phenomenon which is known to occur to people who have not experienced any subjective symptoms of fatigue or feelings of tiredness and where such symptoms and feelings have not been masked by engagement in stimulating work or exposure to bright artificial light, although the issue may be implicitly addressed in his finding that Ms Fraser was not fatigued. The issue is critical to this case because of the unchallenged finding to the effect that Ms Fraser did not experience any symptoms of fatigue or feelings of tiredness prior to the accident, and it could not be said that those symptoms or feelings were 'masked' 40 minutes after she had finished work and 30 minutes after she had commenced driving home.

36 The trial judge did not accept that conclusions drawn from testing people who had been awake for 17 - 19 or 20 - 25 hours could be applied to assess the risks applicable to a night-shift worker acting responsibly and managing their accumulated sleep debt, which was the tenor of Ms Fraser's evidence.[28] In this context the trial judge was referring to Ms Fraser's evidence to the effect that she generally had no difficulty falling asleep after returning home, and usually slept seven to eight hours until about 12.30 pm, while her partner cared for her 4-year-old daughter. She also gave evidence to the effect that if she felt tired, she would go back to sleep for a couple of hours before going back to work, and on the days upon which she was working, she would usually just 'hang around the house'.[29]

37 In his reasons the trial judge referred to the difficulty of drawing any conclusions from the data upon which Dr Hartley relied, because that data referred to studies conducted by reference to chronological time, and the hours of darkness differ as between the countries in which the studies were conducted and Australia, (including differences arising from daylight saving), and differ depending on the time of the year. In that context, the trial judge observed:

In my view, this evidence of Dr Hartley points up the difficulty with his contention, and the plaintiff's submission, that the finish time for the plaintiff's roster should have been 6.00 am (assuming the risk was reasonably foreseeable). The evidence in this case is that there was pre-dawn light available and official sunrise was about 20 minutes after the plaintiff's accident. The finish time could just as well be 5.00 am or some other indeterminate time depending on the time of the year. The only limiting factor is that we have a 24-hour clock.

There is also the difficulty, acknowledged by Dr Hartley in his evidence, that it is a 'balancing act' because the later the nightshift worker gets home, the greater the impact on the ability of the worker to obtain proper sleep to avoid sleep debt accumulation. There is an inherent conflict in Dr Hartley's proposition for this reason alone. This is critical because of the overriding importance placed by Dr Hartley on the nightshift worker getting the required amount of quality sleep to avoid fatigue and minimise general risk.[30]

38 The 'balancing act' to which reference was made was elsewhere described during the trial by reference to the expression 'sleep-gate'. That expression refers to a notional temporal 'gate' through which night-shift workers must pass so as to get to bed and to sleep before daylight and before the circadian cycle disrupts their sleep, causing sleep debt accumulation. As the trial judge noted, this objective was inconsistent with the assertion that Burswood was in breach of its duty by not structuring its shifts so that Ms Fraser remained on duty until 6.00 am, because she would then have been 'exposed to full daylight and a greater difficulty in obtaining proper sleep, thereby increasing the risk of sleep debt accumulation during the nightshift roster'.[31]

39 The trial judge noted that Dr Hartley purported to attribute the cause of Ms Fraser's accident to fatigue, based on his research in relation to fatigue in the transportation industry, and the characteristics of accidents caused by fatigue, such as veering off a straight flat road without apparent cause.[32] However, the trial judge expressed the view that in a case such as that before him, fatigue would normally be expected to be determined by reference to the evidence of the driver, and to some extent, by implication from the circumstances of the shift roster including the length of the shift and the nature of the work undertaken.[33] In this context the trial judge again referred to Ms Fraser's evidence to the effect that she was not tired and did not experience any symptoms of fatigue or sleepiness prior to the accident. In the view of the trial judge, if Ms Fraser was tired, then one or more of the normal symptoms of tiredness identified by Dr Hartley would have been experienced by her.[34]

40 The trial judge also noted that Dr Hartley had expressed the opinion that Burswood should have provided facilities for Ms Fraser to nap after finishing work. In that context the trial judge noted that in fact Burswood had facilities for employees to rest if they were tired or unwell.

41 The trial judge also noted Dr Hartley's evidence to the effect that after workplace stimuli were removed, the masking effect of those stimuli would dissipate and, in Dr Hartley's words, 'true sleepiness is revealed'.[35] The trial judge took Dr Hartley to mean that after the masking effect ceased, the symptoms and feelings of fatigue or tiredness would be experienced by the worker. In that context he again noted that Ms Fraser said that prior to the accident she did not suffer or experience any of the signs identified by Dr Hartley as indicators of fatigue or tiredness. The trial judge took this evidence to indicate that the cause of Ms Fraser's accident was not fatigue or tiredness.[36]

42 The trial judge also noted the tension between Dr Hartley's suggestion that workers should be encouraged to take a short nap before driving home and his evidence that it was of the utmost importance for night-shift workers to get good quality sleep so as to avoid accumulated sleep debt. The tension arises from the fact that a short nap would reduce the chances of the worker obtaining lengthy quality sleep after he or she got home, especially if the nap meant that the worker did not get to bed at home until after broad daylight.

43 Following his review of Dr Hartley's evidence, the trial judge expressed his conclusions with respect to the proposition that Burswood had a duty to organise its night-shifts to take account of the effect of the circadian cycle in the following terms:

However, as Dr Hartley said in his evidence, the fact of the 'nadir of the circadian cycle' in the period 2.00 am to 6.00 am is simply a matter which must be borne in mind in the 'balancing act of trying to get the balance right' of ensuring that the nightshift worker is able to obtain quality and sufficient sleep. This is of paramount importance in being able to get home safely. On a consideration of all the evidence I am not persuaded that the defendant at the relevant time in 2001, had not achieved the balancing act required between the competing interests. It is these competing interests that inform the safety considerations for nightshift workers in a material respect. As part of this balancing act the roster finish time of the plaintiff, did not, in my opinion have to be adjusted to some indeterminate time over a three to four hour period to avoid the nadir of the circadian cycle (whenever that might be at any given time of the year). This is not to say that the increased risk relied upon by the plaintiff for nightshift workers does not exist or that it was not reasonably foreseeable by the defendant.[37]

44 The next topic addressed by the trial judge in his reasons related to documentary evidence tendered on behalf of Ms Fraser for the purpose of establishing the state of knowledge with respect to the importance of sleep and the interrelationship between sleepiness and fatigue and road accidents during hours of darkness, as at the date of Ms Fraser's accident in December 2001. In that context the trial judge noted that there was no evidence that Burswood knew its night-shift workers were at increased risk of falling asleep at the wheel when driving home before 6.00 am, and that there was no evidence that any of Burswood's night-shift workers had raised issues with respect to fatigue or sleepiness as a safety issue in either the workplace or in relation to their travel home after work.[38]

45 Ms Fraser's case was put on the basis that Burswood ought to have known of the risk in December 2001, with the result that the risk was reasonably foreseeable. In support of the proposition that Burswood ought to have known of the risk, 20 newspapers articles published between 1990 and 2001 in various journals, and six papers dealing with the issue of fatigue in the transport industry published between 1997 and 2000 were tendered on behalf of Ms Fraser. In his reasons the trial judge dismissed Burswood's objection to the tender of the documents and received them as evidence of what had been published in the mass media and in academic and industry circles, but not as evidence of truth of their contents.[39] The trial judge expressed the view that the material did not identify with precision the risk relied upon on behalf of Ms Fraser, and noted that apart from one publication by the Australian Council of Trade Unions (ACTU), the other papers published on the subject of fatigue all concerned the professional transport industry, and Burswood was not engaged in that industry.[40]

46 The trial judge noted that the ACTU publication contained some general guidelines in relation to roster patterns and lengths of shift cycle. However, under the heading 'Timing of Shifts', the only recommendation was to the effect that shifts should never start between midnight and 6.00 am so as to ensure an opportunity for an adequate night's rest, and no recommendation was made with respect to the appropriate finishing time of night-shifts.[41] The trial judge considered this omission to be of particular significance if one accepted that the guidelines represented a best practice summary of known health and safety concerns for shift workers as at September 2000, when the document was published.[42]

47 At this point in his reasons the trial judge digressed to succinctly summarise the case which had been advanced on behalf of Ms Fraser in the following terms:

The gravamen of the plaintiff's claim is that, as a nightshift worker, she faced an increased risk of having a motor vehicle accident while driving home in the pre-dawn hours of the morning after finishing work, as a result of the biological effects of the circadian cycle. More particularly, the claim is based on the notion of the increased risk of a nightshift worker suffering fatigue as a result of accumulated sleep debt occurring during the roster period. The plaintiff also relies on the concept of, or process of, 'masking' fatigue or sleepiness in the workplace because of the stimulating effect of the workplace on the employee (bright lights, work activity).

The plaintiff contends that because of the identified risks she must have had a 'micro-sleep' which caused her to drive off the road, even though she accepts she panicked and, as a result of panicking, braked too heavily and over steered the vehicle causing it to roll over. The plaintiff herself does not admit to feeling or experiencing any of the identified indicators associated with fatigue or sleepiness at the time of the accident.

The plaintiff does not contend that any other factor caused or contributed to her losing consciousness during her alleged micro-sleep other than the biological and physiological operation of the circadian cycle. The plaintiff does not complain that the length of her roster (eight hours) was too long, or that the nature of her duties and the work during her shift were such as to cause fatigue or tiredness, thereby enabling the circadian cycle to have a greater chance of causing a micro-sleep. Likewise, the plaintiff does not complain about the structure of her work roster insofar as days on and days off are concerned. The plaintiff's own evidence was that she was not fatigued or tired at the material time as a result of performing her nightshift work duties.[43]

48 The trial judge then addressed the issue of foreseeability of risk. In that context he noted that almost all of the material relied upon in support of Ms Fraser's case, including the evidence of Dr Hartley, was concerned with the risks associated with fatigue as a result of sleep deprivation in the transport industry.[44] Nevertheless, the trial judge expressed his conclusions, after reviewing Dr Hartley's evidence and the written materials which had been tendered in support of Ms Fraser's case, in the following terms:

In my view, based on the evidence adduced in this trial, there was a sufficient and respectable body of medical and other evidence, including in particular statistical evidence prepared by the transport industry concerning driving accidents, such that the defendant should have been aware that there was an increased risk to its nightshift workers of having an accident while driving home in the pre-dawn hours of the morning. This increased risk is as a result of the pressure for sleep due to the risk of accumulation of sleep debt during the period of the nightshift roster and of interruption of the circadian cycle, which is regulated by the day/night cycle.

The increased risk arising out of the issues of fatigue, accumulated sleep debt and the circadian cycle for shift workers are fully set out in the ACTU publication in 2000. As mentioned, the publication is not 'ground breaking' when consideration is had to the other evidence. I infer it is a summary of best practice for employers and employees involved in shift work as at 2001. Given the size of the defendant's workforce and the health and safety system in place at the time, I find it is inconceivable that the defendant, with a 24 hour operating business, would not have been aware of the publication. If it was not, it should have been.[45]

49 As the trial judge had concluded that Burswood should have been aware of the heightened risk of injury to night-shift workers driving home in the pre-dawn hours of the morning, he concluded that Burswood had a duty to take reasonable care to mitigate that risk.[46] The trial judge noted that, by the end of the trial, it was contended on behalf of Ms Fraser that Burswood's duty of reasonable care required it to:

(b) alter Ms Fraser's night-shift roster so that she did not commence driving home until at or after sunrise, which was said to involve finishing her roster at 6.00 am; and

(c) offer Ms Fraser the opportunity to rest until day break and a place at which she could rest if she wished to do so.[47]

50 In relation to the suggested duty to adjust night-shift rosters so that their ending coincided with sunrise, the trial judge noted that there was no evidence to the effect that any employer had ever adopted such a strategy.[48] Further, the trial judge reiterated his earlier observation to the effect that there was no suggestion that employers should adopt such a strategy in the ACTU paper published in 2000.[49] He noted that the ACTU publication did warn against commencing a night-shift too late in the evening, which created a tension with the proposition that Burswood should have arranged its shifts to continue until 6.00 am because of the recommendation contained in the ACTU publication to the effect that night-shifts should not exceed eight hours in length.[50]

51 Further, the trial judge reiterated his earlier observation to the effect that the asserted duty to ensure that night-shifts did not finish until, at, or after daybreak was inconsistent with the proposition that night-shift workers should be encouraged to get home before daybreak so as to get lengthy quality sleep in order to avoid accumulated sleep debt.[51] The trial judge also noted that another practical consideration which mitigated against the asserted breach of duty was the fact that the later the worker finished, the greater will be the volume of other traffic on the roads while the employee is driving home. That would in turn result in longer travel times and greater exposure to other risks including negligent driving by others during peak hour traffic.[52]

52 For those reasons, the trial judge rejected the assertion that Burswood had a duty to arrange Ms Fraser's shift times so that she could commence driving home at or after sunrise or alternatively at 6.00 am.[53]

53 The trial judge found that Burswood's duty of care to Ms Fraser included a duty:

To warn her of the increased risk of having an accident while driving home due to fatigue arising out of accumulated sleep debt that may not be subjectively appreciated because of masking while in the workplace'.[54]

54 However, later in his reasons, where he summarised his findings, he put the duty in somewhat different terms, referring only to the risk arising from 'the low point in the circadian cycle of alertness', making no reference to accumulated sleep debt.[55]

55 The trial judge identified the content of the warning which he considered should have been given, in the following terms:

In my opinion, the scope of the duty requires the warning to include also general information about the circadian cycle along the lines of the 1998 Department of Transport publication entitled 'Staying Alert At The Wheel' (exhibit 35) and the September 2000 ACTU publication of 'guidelines' for shift work. The information in the warning should alert the plaintiff to the reasonably foreseeable risk so that she can fully appreciate the nature and extent of the risk, to enable her to make an informed decision of whether to drive home or make some other arrangement. The content of the warning should include full details of the identified and known indicators that point to the onset of fatigue and sleepiness. That way, the plaintiff is forewarned and can take appropriate steps to minimise any risk to her own safety or, to the safety of others who may be affected by her driving actions. An example, post the accident, of the type of general information the plaintiff should have been given as part of the defendant's duty to warn of the risk can be found in the Civil Aviation Safety Authority publication entitled 'Fatigue management strategies for aviation workers: a training & development workbook' dated May 2012, which has chapters on working non-traditional hours, fatigue, sleep and napping.[56]

56 In the summary provided at the conclusion of his reasons, the trial judge justified the imposition of the duty to warn in the following terms:

A warning to the plaintiff in these general terms is necessary, irrespective of the uncontroverted evidence that, when driving, your body will tell you when you are tired. This is because, in part, the action of driving itself will take away the self-checking process and tend to prevent the state of real fatigue or sleepiness revealing itself.[57]

57 There is an apparent tension between these two sentences. However, the second sentence cannot reasonably be construed as suggesting that driving had the same or a similar 'masking' effect as stimuli in the workplace, as there was no evidence to that effect and the trial judge expressly found that any masking effect arising from workplace stimuli would have ceased by the time Ms Fraser had her accident in determining the foreseeable risk to Ms Fraser. Further, consistently with the first sentence in the passage above, the documents to which the trial judge referred in his specification of the content of the requisite warning specifically referred to the symptoms of fatigue likely to be experienced by drivers. Accordingly, any apparent tension between the two sentences in the passage above should be resolved by construing the second sentence as a finding that the action of driving would only have a minor or limited effect of masking the symptoms of fatigue, if in fact the driver is fatigued.

58 The trial judge found that Ms Fraser could have had a nap or rest before driving home had she felt the need to do so for any reason. He further found that she would not have utilised such a facility because her overriding motivation at the end of her shift was to get home and to sleep.[58]

59 As I have noted, the trial judge found that if there was a duty to provide a napping facility, Burswood did not breach that duty as facilities for rest were available to employees if required. The trial judge also found that if Burswood was under a duty to set its rosters so as to best mitigate the risks for shift workers in working night-shifts as a result of the circadian cycle, there was no breach. In that context, he observed that Ms Fraser finished work at various times, including sometimes at 6.00 am. He also observed that on the day of the accident sunrise was at 5.04 am, with the result that there was pre-dawn light during the course of the journey.[59]

60 I digress to observe that the process of reasoning elucidated appears to overlook the finding that Ms Fraser's shifts most commonly terminated at 4.00 am, and that her drive home commenced at 4.10 am, almost an hour before sunrise, at which time there would have been little pre-dawn light.

61 The trial judge, however, did find that Burswood had breached the duty which he found it owed to warn Ms Fraser of the risks associated with driving home after night-shift.

62 The principal issue which had to be addressed in the area of causation was whether Ms Fraser's vehicle left the dual carriageway because she fell asleep. In addressing this question, the trial judge first reiterated his finding that Ms Fraser did not give evidence of any recollection of falling asleep, and that, properly construed, her evidence was to the effect that she assumed that she had fallen asleep. He reiterated his earlier finding that Ms Fraser did not experience any symptoms of fatigue or tiredness, and noted that she gave a clear and lucid account of her journey to the point of the accident and for the period immediately following the point in time at which she heard the left wheel of her vehicle strike the gravel to the left side of the sealed carriageway. The trial judge noted that the only portion missing from Ms Fraser's recollection of events was the moment in time immediately prior to the time at which her vehicle left the road for the first time. In that context, he observed that 'it is impermissible for the court to also engage in speculation as to why the plaintiff's vehicle partially left the road while she was driving and was fully alert to her surroundings'.[60]

63 The trial judge referred to Dr Hartley's evidence with respect to 'micro-sleep as a result of an "on/off switch"'.[61] I digress to observe that this is a shorthand reference to the evidence given by Dr Hartley with respect to the phenomenon whereby people who are tired can experience short periods of sleep without even knowing that they have slept. It cannot be a reference to a phenomenon by which people who are not tired, and are fully alert and cognisant of their surroundings suddenly fall asleep without warning because, as will be seen, there was no evidence to that effect.

64 The trial judge went on to observe that Dr Hartley lacked medical expertise and was therefore not qualified to give an expert opinion on the subject of micro-sleep without warning.[62] This should not be construed as a ruling excluding evidence to the effect that people who had not experienced any symptoms of fatigue or feelings of tiredness can suddenly lose consciousness and fall asleep because, as will be seen, there was no evidence to that effect. The trial judge also observed that, in his view, the issue of micro-sleep, in the sense of a period of sleep of which Ms Fraser was unaware, was not raised in the statement of claim, which explained why Burswood did not adduce expert evidence on the subject.

65 The trial judge also referred to a passage in one of Dr Hartley's reports in which he referred to micro-sleep being 'as a result of sleepiness', and again referred to Ms Fraser's evidence to the effect that she did not experience any symptoms of fatigue or tiredness because she was not tired. The trial judge then observed that Dr Hartley's evidence did not elaborate on 'how a person who is not tired and is fully alert driving a vehicle can suddenly be unconscious for a period of time, and for possibly up to "several minutes"'.[63] I digress to observe that, as will be seen, Dr Hartley did not, in fact, give evidence to the effect that a person who is not tired and fully alert will experience a micro-sleep.

66 The trial judge reiterated his earlier finding that Ms Fraser lost control of her vehicle because she panicked, braked too heavily and oversteered, all of which occurred when she was conscious. He observed that if she had been driving with due care, attention and skill she would have been able to drive the vehicle back onto the road without losing control, and that there was sufficient time and opportunity to do that after she became aware that the left wheel of her vehicle had entered the gravel to the left side of the sealed carriageway.[64]

67 The trial judge summarised his conclusions on the subject of causation in the following terms:

Having carefully considered the evidence available to the court in this case, and in particular the plaintiff's own evidence, I am not persuaded on the balance of probabilities that the plaintiff fell asleep or had a 'micro-sleep' in the sense referred to by Dr Hartley, and that this was a cause of her driving off the road immediately before the accident.

I would add that, even if the plaintiff did fall asleep while driving, I would not find, based on her own evidence and the uncontested evidence about the nature and extent of her nightshift roster and work duties, that any micro-sleep was caused by the identified foreseeable risk, that is, as a result of accumulated sleep debt arising out of the plaintiff's employment.

In any event, even if the plaintiff had been given a warning of the risk, I am not persuaded she would have delayed her journey home. She was firm in her attitude to not spending any unnecessary time at work (this is not a criticism). She minimised her time in the workplace and wasted no time in getting changed and leaving for home. There is no likelihood that the plaintiff would have taken any steps which would have delayed her departure, even with knowledge of the risk and opportunity to nap before leaving.

The plaintiff's own evidence was that she spent minimal time at work, she did not socialise with other employees (except on one occasion), and that her priority was to get home to be with her family and to have her sleep. I have no doubt she was a responsible employee in this regard and managed her sleep cycle accordingly. She did not have any accumulated sleep debt at the time. She was also an experienced nightshift worker and fully appreciated the risk of driving home tired at the end of a nightshift. I am not persuaded, applying the relevant test, that there was any causation of the plaintiff's accident as a result of the defendant's breach of duty. The warning, if given, would not have prevented or minimised the risk of the occurrence of the plaintiff's accident.[65]

68 The trial judge noted that because he had found that the likely cause of the accident was Ms Fraser having driven without due care and attention and proper skill, and that no breach of duty by Burswood caused or materially contributed to the accident, it was not possible for him to undertake any apportionment of liability as a result of contributory negligence.[66]

69 In summary, Ms Fraser's claim was dismissed by the trial judge because:

(a) he found that she had not established that her accident was caused by her falling asleep before leaving the road, as she had not established that, in fact, she fell asleep, and;

(b) because Burswood's breach of the duty which he found it owed to Ms Fraser to warn her of the risks associated with driving home following night-shift could not have caused or materially contributed to her accident because such a warning would have had no effect upon her actions on the morning of the accident.

70 For the purposes of this appeal, the only evidence given at trial that is contentious is the evidence given by Ms Fraser and Dr Hartley.

71 For purposes of this appeal, the evidence of Ms Fraser need only be carefully examined with respect to two topics. Those topics are:

(b) whether any warning given by Burswood with respect to the risks associated with driving home after night-shift would have altered her actions on the morning of the accident.

72 Ms Fraser's evidence with respect to her sleeping practises prior to the accident is relevant to both topics. Ms Fraser stated that when her shift finished, usually at 4.00 am, she would wash her hands, go to the toilet, get changed, hand in her uniform and go straight to her car to go home. This would usually take her five or 10 minutes.[67] When she got home she would take a shower and go straight to bed. She had no real difficulty falling asleep and would usually sleep for seven or eight hours, until about 12.30 pm or 1.00 pm.[68] When she awoke, she would usually remain at home and if she felt tired would go back to sleep for a couple of hours before returning to work. She did errands, like shopping, primarily on her days off.[69]

73 On the morning of her accident, Ms Fraser recalled travelling her usual route home, which involved driving south on Fremantle Road. In her evidence in chief she described the accident in these terms:

And then from Fremantle Road---I got to - I remember seeing the 10K mark to Mandurah and then I just remember hearing a big shuddering - like, a big sound and my steering wheel started shuddering and when I looked up there was a big mound on the - not a mound, like a big verge on the side of the road that goes the whole way of the Fremantle Road.

Which side of the road was this---On the left-hand side.

Okay---So I panicked a bit and slammed my brakes on and tried to get out of the way, you know, go back on to the road, so to speak, so - but, yeah. I think I over-corrected too much because it started heading for the - the middle section of - of the double road.

There was a median strip on the middle section---Yes.

NUGAWELA, MR: Okay---And by that time I think I - I started panicking then because everything started going a bit - I think I must have tried to get back on to the road again and that's when the car flipped over.

Okay. And do you recall whether it flipped over once or many times or - - ----The last thing I - thank you. The last thing I remember is putting my hands up to protect my head.

Right---That's all I remember.[70]

74 It is of some significance that in her first description of the accident in her evidence, Ms Fraser made no reference to falling asleep.

75 Ms Fraser stated that she was travelling at 90 - 100 kph along Fremantle Road.[71]

76 A little later in her evidence in chief, Ms Fraser was again asked about the accident:

You described to the court the instant you felt your vehicle shudder, I think---I head (sic) the sound first and then my steering wheel started shuddering.

And where was your car when you heard the sound first and the steering wheel started to shudder---It was in the - you've got the road and then you've got some rough land and then the embankment, so it was in the rough bit of road. I'd actually left the road and - yep.

And what was the rough bit of road made up of? Do you - - ----Just gravel and sand and - - -

Okay---- - - just remnants of the embankment, I think.

And do you know what - do you recall what caused your vehicle to move into the gravel embankment---I think I must have fallen asleep because there's - it's just a straight road.

Right. But I'm more interested, not so much in your conclusion - - ----Oh, okay.

- - - but your memory, your recollection immediately before feeling the shudder - - ----Yep.

- - - do you recall what you were doing---I was in the left-hand of the two lanes driving home.

NUGAWELA, MR: And do you recall what caused your vehicle to move off the road onto the gravel shoulder---No.

Have you tried your best to recall what caused the car to move over---Yeah. I've gone over it a number of times but there's just one minute I'm driving along, next minute I'm in the - heading for the embankment.

On the left-hand side---Yeah.[72]

77 It is also significant that on the first occasion Ms Fraser referred to falling asleep, her counsel accepted that she was expressing a conclusion rather than a recollection. After being asked by counsel to distinguish between the two, she clearly stated that she had no recollection of what caused her vehicle to move from the road onto the gravel shoulder.

78 Ms Fraser described what occurred after the vehicle entered the gravel shoulder in these terms:

Now, you then told the court that you - and you got into the - when you realised that your car was on the gravel embankment, what did you do---I started to panic and I just slammed my brakes on and moved my wheel to the right---

Yes---- - - to try and get back onto the road.

Did you manage to get back onto the road---Well, then it sort of headed for the bitumen. So it went over the two - two lanes of the road and headed for the - the medium strip. So then I braked again and turned to the - I presume I turned to the left trying to get back onto the road---

Okay---- - - but that was a bit blurry from then on.[73]

79 Later in her evidence, Ms Fraser stated that her vehicle had travelled approximately 2 metres from the sealed carriageway onto the gravel shoulder before she braked and corrected its direction of travel.[74]

80 In cross-examination, Ms Fraser agreed that after she finished her shift she would go directly to her locker room, change into her clothes and head home. She did not linger or have a shower before doing so. She accepted that once she had finished her shift that she had one thing in mind, which was to get home and see her family or get to bed; and that was always her practice.[75] There was, however, one occasion on which her colleagues asked her to come for a drink after the shift had finished. She recalled that she did not really want to but they persuaded her, so she stayed for one soft drink and then went home.[76]

81 Ms Fraser confirmed that in the days preceding the accident she followed her usual routine of coming home, going straight to bed, having a good eight hours sleep and then taking it easy knowing that she had a shift to do that night.[77] She also confirmed that any extra activities would be undertaken on her days off, rather than between shifts.[78] She agreed with propositions put to her in cross-examination to the effect that after she finished her shift, she did not 'dilly-dally' around talking to people, and that she was focussed on getting home.[79]

82 Ms Fraser denied that her description of the accident was based upon her general practices and asserted that she had a recollection of driving home that morning.[80] She stated that she could recall seeing a garage (petrol station) on the horizon as she was driving south down Fremantle Road.[81] She also remembered seeing a little sign that indicated that it was 10 kms to Mandurah.[82]

83 During cross-examination, Ms Fraser described the accident in these terms:

Now, you said that you drove your car towards the median strip and you recall doing that---No, I didn't drive it, I lost control.

Okay---Yeah.

All right. So somehow the car ended up going towards the median strip---I woke up and slammed my brakes on and turned the wheels and then the car went out of control and headed towards the median strip.

And you can clearly recollect your car pointing in that direction as it took off into the air---Like I said, I saw it heading for the median strip and then as I tried to slam my brakes on again and turn the wheel, that's when I lost consciousness.

All right. Now, telling the court that you think you must have fallen asleep---Yes.

MANGAN, MS: But at the same time, you're telling the court you have a very clear recollection of that day and right up to seeing the 10-kilometre sign to Mandurah and seeing the petrol station on the horizon---Yeah.[83]

84 I digress to observe that in this portion of her evidence, Ms Fraser first asserted that she 'woke up', in terms which suggest that it may have been a recollection, but then agreed with the proposition that she thought she must have fallen asleep.[84]

85 Ms Fraser was then cross-examined about the statement which she made to police on 28 December 2001. She accepted that she was very careful in making the statement and wanted to make sure she was telling the whole truth and provided a full and accurate account of what happened.[85] She asserted that she had told the police officers who questioned her that 'I'd fallen asleep, I think I'd fallen asleep'.[86] However, a passage from the written statement to police which she signed was put to her in which she asserted:

I do not know why the accident happened, possibly I dropped off for a moment however I have no history of blackouts or similar and I have made this same trip from Perth to home since April this year without encountering any prior problems.[87]

So the time that you made your statement to the police, it was only a possibility in your mind that you dropped off---I said to them that I think I fell asleep.

But you hadn't any other explanation at the time; you couldn't think of what had happened, so you thought "I possibly dropped off"---Well, there was nothing obstructing my - my car or anything and one minute I'm in the left-hand lane of the road and then next minute, I've got an embankment in my face, so - - -

And you didn't tell the police anything about the embankment, did you, when you made your statement---I said to them that I'd gone into the gravel and then slammed my brakes on and steered my car to the left - to the right, sorry, not the left.[88]

87 Ms Fraser accepted that at the time when she made the written statement to police she was unsure in her own mind why the accident had happened, and that it was a possibility that she had 'dropped off'.[89]

88 When asked what she was thinking while driving home, Ms Fraser stated that she was thinking she just wanted to get home and go to bed.[90] She had the radio on and presumed that she had been listening to songs.[91] She denied that she could simply have been inattentive for a split second or however long it took to drift off of the sealed carriageway.[92] When it was put to her that there were many explanations for leaving the road other than dozing off, she responded:

I was a good driver. I was in the left-hand lane of the thing. Next minute, I hear the gravel and then I'm heading for the embankment.[93]

89 Ms Fraser agreed that she had told police that she did not recall feeling overly tired at the time, and accepted that this was the fact at the time of the accident.[94] In the context of cross-examination with respect to her general driving experiences, Ms Fraser stated that she had never felt tired when driving to or from work on any occasion.[95] However, on long trips she 'did the right thing' and shared driving.[96]

90 Ms Fraser accepted that she had told police that when she felt her car leave the edge of the road and enter the verge, she panicked, braked and steered to the right.[97]

91 Ms Fraser denied that it was the police who first suggested to her that she might have fallen asleep.[98]

92 Ms Fraser was also cross-examined about a written statement which she made to a private investigator who was engaged to investigate the circumstances of the accident on her behalf in about February 2002.[99] She accepted that the statement, which she signed, asserts that she was travelling at about 90 - 100 kph, and that this was the last she could recall until hearing noises like the vehicle being driven on gravel.[100] The statement contains the following passages:

I must have dosed [sic] off behind the wheel momentarily and when I heard the noise I panicked and braked heavily

...

When I heard the noise and woke I recall my vehicle was almost all off the road and had veered off to the right.

When I hit the brakes I tried to steer the vehicle straight but I lost control in the soft ground at the side of the road.[101]

93 Ms Fraser accepted that the written statement provided a somewhat different account of the circumstances of the accident to that which she gave to police and in her evidence in chief.[102] She asserted that she could not remember giving the statement to the private investigator.[103]

94 When it was put to Ms Fraser that at the time the private investigator was engaged, she believed that a mechanical fault with the vehicle may have been responsible for the accident, she replied:

No, I believed that I'd braked too heavily and, because I'd oversteered, the car had gone out of control.[104]

95 In re-examination, Ms Fraser was asked what she would have done if Burswood had told her that when she finished her night-shift at 4.00 am and drove home in the dark there was an increased risk that she might fall asleep or be drowsy - would she have been open to the possibility of waiting back at work until the sun first started to come up. She replied, 'I suppose so, yeah'.[105] She amplified that answer by stating that she would probably ask if she could have finished her shifts at 6.00 am.[106] She was also asked if such a warning would have affected her practices at the time of leaving work. She replied that she would have 'probably hung around and had a shower and - I suppose, yeah'.[107]

96 The trial judge permitted further cross-examination on that topic. In the course of that cross-examination, Ms Fraser affirmed her earlier evidence to the effect that it was her practice to go straight home after her shift, and that she just wanted to go home when she had finished.[108] She went on to state that if she had been given a warning with respect to the risks associated with driving home in the dark, she would have sought a shift that would have been better for her.[109] In that context, she asserted that if it had been made clear to her that driving home in the dark was dangerous, she would not have put herself in a dangerous situation.[110] Later in cross-examination, she reiterated that if warned she would have tried to get a shift finishing at 6.00 am, and that if she had not been able to obtain such a shift, she would probably have gone in for a shower at work, taken her time to get ready and made sure that it was light outside and safe before she drove home.[111] She asserted that she 'would have allowed work time to bite into home time' to avert the risk of having an accident.[112]

97 Before reviewing the evidence of Dr Hartley, it is desirable to identify the four distinct concepts relevant to the issues in this case which were addressed by that evidence. They are:

If a person does not obtain the amount of sleep which that person generally requires for normal functioning (on average seven to eight hours sleep per day), over time, the shortfall between the sleep obtained and the sleep required will accumulate, causing what is described in the literature as an accumulated sleep debt. The accumulated lack of sleep will cause fatigue, tiredness and reduced levels of function. The body will also endeavour to 'repay the debt' by obtaining more than the usual hours of sleep which, if obtained, will, over time, restore the body to normal levels of alertness and function.

There are biological rhythms within the body, many of which follow a 24 hour cycle (circadian means 'about a day'). The rhythms relate to such things as core body temperature, hormone secretions, urine formation and blood pressure. Rhythms are also generated for sleepiness and alertness. The rhythms are usually conditioned by the fact that generally the human body is most active during the day and least active during the night. Accordingly, the circadian rhythm relating to sleepiness and alertness generally operates on the basis that a person will be most alert during the day and most sleepy during the night and the rhythms are therefore stimulated by environmental cues, such as sunlight and darkness. Although the rhythms can be adjusted or reprogrammed if a particular person is most active at night, and least active during the day, such adjustments take time. The circadian rhythm is largely responsible for what is commonly known as jetlag.

When a person is actively engaged and stimulated, particularly in an environment which artificially simulates daylight (by using bright lights), the symptoms of fatigue and feelings of tiredness which they might otherwise experience may be supressed until those stimuli and artificial time cues are removed.

Micro-sleep is a phenomenon in which a person with a need for sleep may, unintentionally, slip into a very brief period of sleep, lasting between a few seconds and several minutes, sometimes without being aware of the fact that they have slept after awaking.

98 As I have noted, three written reports prepared by Dr Hartley were tendered in evidence.[113] In his first report Dr Hartley described the circadian cycle, largely by reference to the incorporation of articles which he (and others) had published, generally in terms which accord with the description I have set out above. By means of the same method - that is, by reference to his previously published articles - Dr Hartley observed that the effect of the circadian rhythm upon night-shift workers was generally to reduce the quantity and the quality of their sleep, giving rise to an accumulated sleep debt. In that context, he incorporated the following paragraph from one of his previously published articles:

Decreasing the amount of sleep the body and brain have been accustomed to obtaining results in a cumulative sleep debt. When the amount of sleep we obtain decreases from normal, our feelings of sleepiness when awake increase, signalling that our brain and body has a need for sleep. Insufficient sleep increases the likelihood that our brain will slip into sleep (eg, by nodding off) while we are awake, which will become more frequent and more rapid with a larger sleep debt. These episodes of sleep can be very short, microsleeps (seconds), or they can last for several minutes ... During these periods of sleep, which they may be unaware of, the individual loses awareness of the external environment, resulting in significant performance lapses[.][114]

99 It is significant to note that in this passage, Dr Hartley draws a clear connection between an accumulated sleep debt resulting in feelings of sleepiness and the occurrence of micro-sleeps, the frequency of which increases with the size of the accumulated sleep debt. The passage is not consistent with the proposition that micro-sleeps can occur without an accumulated sleep debt and/or without symptoms of sleepiness.

100 In his first report, Dr Hartley also incorporates text from his previously published articles relating to the relationship between levels of function and what he described as the circadian nadir (the lowest point of alertness), which was generally between 1.00 am and 4.00 am for most normal individuals. In that context he referred to studies indicating the greatest risk for a fatigue-related motor vehicle accident was during the pre-dawn hours. He referred also to studies which found that motor vehicle accidents caused by the vehicle drifting off a straight road were frequently attributed to driver fatigue.

101 In that context, in his first report Dr Hartley expressed the view that the circumstances of Ms Fraser's accident were consistent with it being caused by fatigue, and that the risk of such an accident was greater because Ms Fraser was driving in the pre-dawn period, which could be expected to be the low point in her circadian cycle. Accordingly, he expressed the view that there was a connection between her work and the accident.

102 In his second report, Dr Hartley observed that because Ms Fraser had not worked for nine days before returning to shift work on the Friday preceding her accident, it was likely that she would have returned to a normal circadian cycle during that period and that her adjustment to that cycle over the three nights upon which she worked night-shift would have been limited. In this report, Dr Hartley referred to masking in these terms:

One common example of this lack of a priori knowledge is that of ignorance of fatigue masking by stimulation from work activities. True fatigue or sleepiness is normally measured by how long it takes a person to fall asleep in a dark, quiet room, with no stimulation. An employee such as Tracey Frazer [sic] would have had considerable stimulation, from doing her job, under bright lights, talking to people, and moving around when it is virtually impossible to fall asleep because of the great amount of stimulation provided by movement and the environment. An employee in this situation would judge themselves and others to be free of fatigue. Half an hour later the same employee, travelling home in a car close to 4.00 am ., would be in the near dark (the crash is reported to be before sunrise), reclining nearly immobile in a seat, with no one to talk to and being gently rocked by the car. At this point, unbeknown to the formerly alert employee, true sleepiness is revealed.[115]

103 I digress to observe that in this passage Dr Hartley makes it clear that the masking effect of stimulation in the workplace would not conceal true tiredness after the worker had been driving home for half an hour or so. Although the passage does not stipulate how 'true sleepiness is revealed', consistently with the general tenor of this and his earlier report, one would expect the worker to experience normal symptoms of fatigue (yawning, lack of attention, drowsiness, etc) and to subjectively experience a feeling of tiredness, which Ms Fraser did not.

104 Dr Hartley's third report expresses limited views with respect to the occupational health and safety practices that might be expected from employers expressed at such a level of generality as to not be relevant to the issues raised in this appeal.

105 In his oral evidence, Dr Hartley referred to his extensive research into driver fatigue in the transportation industry. He described masking, and the cessation of the masking effect as a night-shift worker drives home, in similar terms to the passage from his second report which I have set out above.[116] In that context, he was asked if studies had shown how long it took for the masking effect to dissipate. He replied by referring to studies undertaken in a driving simulator at night, which showed that the general consensus was that 'sleepiness sets in' after about 20 - 30 minutes.[117] In this context, I would construe 'sleepiness' to be a reference to symptoms of fatigue and feelings of tiredness rather than actual sleep.

106 In the context of describing the circadian cycle in generally the terms which I have set out above, Dr Hartley suggested that masking could also apply to the effects of that cycle.[118] He observed that the basic circadian cycle was most strongly influenced by daylight, especially at dawn.[119] He also stated that in the case of jetlag, the body will generally resynchronise by reference to the time cues in the new geographical location, whereas night-shift workers continue to work against the cycle of light and dark which makes it difficult for their bodies to completely adapt to a different cycle.[120] Night-shift workers are confronted with the problem of trying to be alert during their normal night time, but also trying to obtain good quality sleep during daytime.[121] He referred to studies which suggested that, generally speaking, night-shift workers often get between one and two hours less sleep than dayshift workers.[122]

107 For reasons which need not be rehearsed, the trial did not take place continuously, but occurred in a number of separate tranches. Dr Hartley did not complete his evidence in chief upon the first occasion he was called. When he returned to give further evidence in chief some months later, he was asked about the portion of his first report in which reference is made to micro-sleeps, which I have set out above. In particular, he was asked to explain how people could be unaware that they had been asleep. He did not respond directly to that question, but observed that research showed that people have to be asleep for two minutes before 50% of them are aware that they have been asleep, and that where periods of sleep shorter than two minutes are involved, a greater percentage would be unaware that they had been asleep.[123]

108 Dr Hartley referred again to the circadian cycle in generally similar terms, but added that there was often a particular problem with the first night-shift, because workers are often awake all day before commencing that night-shift, with the result that when they finish work the next morning, they may have been awake for 24 hours, giving rise to a significant sleep debt.[124] In that context, he observed (perhaps obviously) that, 'the pressure to sleep increases the longer you have been awake without sleep'.[125]

109 Dr Hartley observed that for 'normal daytime people' the lowest point of alertness (the circadian nadir) was generally between 1.00 am and 4.00 am, which corresponded with a period of increased rate of single vehicle accidents, although he conceded that the difficulty with those studies is that one did not know how long the drivers who crashed between 1.00 am and 4.00 am had been awake.[126]

110 Dr Hartley gave extensive evidence of various traffic accident studies conducted in different countries in an attempt to identify a correlation between rates of accidents and the time of day. In that context, he accepted that without information about such things as daylight saving, and the hours of darkness at the time of the relevant accident, it was difficult to draw conclusions from those studies that were directly pertinent to the issues that arise in this case.[127]

111 In an explanation of part of one of his reports, Dr Hartley stated that a person who was having a micro-sleep would not see the point at which they in fact ran off the road.[128]

112 During cross-examination, Dr Hartley confirmed that the most powerful time cue, for the purposes of the circadian cycle, was natural sunlight.[129] He also accepted that an accumulated sleep debt would give rise to feelings of sleepiness and those feelings provided the signal that the brain and the body need sleep.[130] He also accepted that normally, when people are tired they feel sleepy.[131] In that context, Dr Hartley was cross-examined in relation to the terms of a document entitled 'Fatigue Management for Commercial Vehicle Drivers' produced by the Department of Transport (WA) in 1998 and to which Dr Hartley was a contributor.[132] Dr Hartley confirmed the accuracy of assertions within that document relating to the identification of fatigue. Dr Hartley agreed with the proposition contained in that document to the effect that 'when driving your body will tell you when you are sleepy'.[133] He also agreed that fatigue indicators include:

• not feeling refreshed after sleep;
• a greater tendency to feel asleep while at work;
• more frequent naps during leisure hours;
• feelings of fatigue or sleepiness;
• extended sleep during days off; and
• increased errors and loss of concentration at work.[134]

113 Dr Hartley agreed with the assertions contained in the document to the effect that sleepiness indicators include:

• a drowsy relaxed feeling;
• blurred vision;
• difficulty keeping your eyes open;
• head nodding;
• excessive yawning; and
• repeatedly drifting out of your lane.[135]

114 I digress to observe that there is no evidence to the effect that Ms Fraser experienced any of these indicators of fatigue or sleepiness before her accident.

115 Later in his cross-examination, Dr Hartley agreed that he had given evidence on behalf of the prosecution in a number of cases involving motor driving offences. He accepted that the tenor of the evidence he had given in those cases was to the effect that people who are tired feel the signs of loss of alertness and therefore should know that they are sleepy before they actually fall asleep.[136]

116 Dr Hartley also agreed that it was desirable for night-shift workers to go to bed as soon as they got home and, if possible, to minimise early morning daylight on the drive home from night work, including by wearing sunglasses because daylight is a strong biological time cue.[137]

117 Dr Hartley's cross-examination did not conclude during the time available for the second tranche of the hearing, with the result that it resumed several months later. On this occasion, the portion of Dr Hartley's second report dealing with 'masking' was put to him. It was specifically put to Dr Hartley that his reference to 'true sleepiness' being revealed was a reference to the indicators of fatigue and sleepiness specified in the document which he assisted to prepare for the Department of Transport.[138] He accepted that proposition, and that after the masking effect dissipated while driving, true sleepiness would be revealed by such factors as a drowsy relaxed feeling, blurred vision, difficulty keeping one's eyes open, head nodding, excessive yawning and repeatedly drifting out of one's lane.[139] Dr Hartley accepted that he had written this portion of the document published by the Department of Transport.[140]

118 During re-examination, Dr Hartley asserted that it would be preferable for Ms Fraser to 'get past the bottom of the circadian cycle before embarking on her journey home'.[141] That prompted the following interchange with the trial judge:

STEVENSON DCJ: I understand from your evidence though that the other side of the coin is getting her home as early as possible so she can get quality sleep - - ----Your Honour - - -

- - - towards daylight---Your Honour's absolutely correct and of course this is altogether a balancing act of trying to get the balance right. But of course one of the - the most - the most important factor, of course, clearly is the safety and you may be - disagree about this. The most important factor really is - is the safety of the individual concerned. And I think the informed judgment would be it would be most unsafe for her to travel at the bottom of the circadian cycle and - and rather more safe if she waited until she was a little bit more alert and travelled home a little bit later and daylight was present, even though - even though, because she's - because she's moved away from the bottom of her circadian cycle, of course, it may be a little bit more difficult to get to sleep. The concept of sleep gates was introduced by Peretz Lavie many - many years ago, which - which makes interesting reading and - and plots the degree - the readiness of people to fall asleep at different - at different hours of the day. And essentially the sleep gate shuts at around about 11 o'clock in the morning, so if she - if she tried to go sleep at 11 o'clock in the morning it would be really difficult for her. She probably wouldn't do it. So as long as she, in my judgment, left at 6 or thereabouts in the morning, left work at 6 in the morning she would still have a good opportunity of getting to sleep because the sleep gates have not shut. And she would of course be able to have an afternoon nap to top up if she didn't manage to have sufficient sleep in the hours in the morning.[142]

119 Also in re-examination, Dr Hartley again described the masking effect. In that context, he described the removal of masking stimuli using precisely the same words as were used in his second report, and about which he had been cross-examined - namely, 'true sleepiness is revealed'. Dr Hartley went on:

The person will suddenly become quite rapidly overtaken by sleepiness, drowsiness.[143]

120 It is clear from this evidence that Dr Hartley was not suggesting that the masking of fatigue by workplace stimuli would have the effect that a person might fall asleep after those stimuli were removed without first experiencing sleepiness or drowsiness. To the contrary, it is clear from his evidence as a whole that he asserted that the removal of workplace stimuli would lead to the emergence of indicators of fatigue and sleepiness prior to actual sleep. This is why the unchallenged finding of the trial judge, based on the uncontested evidence of Ms Fraser, to the effect that she did not experience any of the indicators of fatigue or sleepiness, or subjectively experience tiredness, is of such significance.

121 Dr Hartley's evidence with respect to the indicators of fatigue and sleepiness was reinforced by two documents prepared and published by government departments in Western Australia prior to Ms Fraser's accident. In the document entitled 'Staying Alert at the Wheel' published by the Department of Transport (WA) in 1998, the effects of fatigue are described as including loss of alertness and drowsiness.[144] Reference is made in this publication to the circadian cycle, which is said to make people feel most sleepy between 1.00 am and 6.00 am, and between 1.00 pm and 4.00 pm. In that context, the document asserts:

It is vital that you get off the road if you feel drowsy during these periods. If you ignore any early signs of drowsiness you may have micro sleeps of 3 to 5 seconds.[145]

It is of some significance that like Dr Hartley, this publication does not assert that micro-sleeps will occur without prior feelings or signs of drowsiness. The same document contains a checklist of 13 warning signs that indicate tiredness.

In a document entitled 'Reducing the Risk of Fatigue at Workplaces' published by the Worksafe Commission of Western Australia in October 2001, reference is also made to indicators which show that a person is tired and needs to sleep, including many of the indicators identified by Dr Hartley, such as a drowsy relaxed feeling, blurred vision, difficulty keeping one's eyes open, excessive head nodding, excessive yawning and repeatedly moving off track.[146]

122 In summary, as foreshadowed earlier in these reasons, Dr Hartley did not give evidence to the effect that micro-sleeps could or would occur without warning to a person who had not experienced any symptoms of fatigue or feelings of tiredness because of the masking effect of workplace stimuli. To the contrary, his evidence was to the effect that removal of workplace stimuli would cause symptoms of fatigue or tiredness to emerge within 20 or 30 minutes if the person was, in fact, tired and in need of sleep. His evidence, reinforced by the documents to which I have referred, was generally to the effect that a person would only be vulnerable to micro-sleeps if they were, in fact, tired and in need of sleep, in which case, symptoms of fatigue and feelings of tiredness would be present. It follows that the fact that Ms Fraser did not experience any such symptoms or feelings, tells strongly against the likelihood of her having experienced a micro-sleep prior to losing control of the vehicle she was driving, because it tells strongly against the proposition that she was so tired as to be likely to experience a micro-sleep.

123 At the commencement of this review of Dr Hartley's evidence, I identified four distinct topics which his evidence addressed. It is convenient to conclude this review of his evidence by applying the evidence with respect to each topic to the facts established by other evidence, particularly that provided by Ms Fraser.

124 At a number of points in his evidence, Dr Hartley confirmed that accumulated sleep debt was the most important factor bearing upon the tiredness of night-shift workers. However, the trial judge found, based on Ms Fraser's uncontested evidence, that she managed her sleep patterns responsibly and effectively while working on night-shift, regularly obtaining between seven and eight hours sleep, augmented by additional naps if she was feeling tired. There is therefore no basis within the evidence for a conclusion that Ms Fraser had an accumulated sleep debt at the time of her accident.

125 Ms Fraser had been off work for a period of nine days prior to recommencing shift duties on the Friday evening before her accident on the following Monday morning. Dr Hartley's evidence, consistent with general human experience, was to the effect that it is unlikely that her circadian cycle would have completely adjusted to nocturnal activity in the course of three night-shifts. Accordingly, it seems reasonable to infer that Ms Fraser would have been affected by the circadian cycle at the time she was driving home prior to her accident. However, in assessing the effect of that cycle and whether it was likely to cause her to fall asleep while driving, it is significant that:

(a) she did not experience any indicators of fatigue or sleepiness, or feel tired; and

(b) the accident occurred about 20 minutes prior to sunrise at a time when there would have been significant pre-dawn light (natural light being the most significant biological time cue).

126 Dr Hartley's evidence was to the effect that the masking effect of exposure to workplace stimuli or bright lights would cease between 20 and 30 minutes after exposure to that stimuli or lighting. Ms Fraser's accident occurred about 40 minutes after she finished work, and about 30 minutes after she commenced driving home. Accordingly, on Dr Hartley's evidence, the masking effect caused by workplace stimuli would not have applied to conceal symptoms of fatigue or feelings or tiredness prior to Ms Fraser's accident.

127 Dr Hartley's evidence is to the effect that micro-sleeps occur when a person is tired and in need of sleep, and that such persons will experience symptoms of fatigue, indicators of sleepiness and will feel tired prior to falling asleep. As Ms Fraser did not experience any of those things, Dr Hartley's evidence would suggest that it is most unlikely that she experienced a micro-sleep prior to her accident.

128 There are six grounds of appeal. With one exception, it will be sufficient to identify the essence of each ground, and unnecessary to set out the ground in detail.

General principles - appeals against findings of fact

129 Each ground of appeal challenges a finding of fact made by the trial judge. It is therefore desirable to set out the general legal principles which govern appeals against findings of fact in civil cases.

130 In order to succeed in an appeal against a finding of fact made at first instance, it is necessary for the appellant to establish that an error was made by the trial judge.[147] In its assessment of whether an error was made by the trial judge, an appellate court will take into account the 'natural limitations' that apply to any appellate review proceeding wholly or substantially on the written record of the proceedings at first instance.[148] Those limitations include the disadvantage which an appellate court has when compared to the trial judge as a result of not having seen the witnesses, and of not having experienced 'the feeling' of a case, which cannot always be readily extracted from a reading of the transcript.[149]

131 Error will be established if the appellate court concludes that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence.[150] An inference will be drawn from the facts established by the evidence if it is more probable, in the sense that such an inference might reasonably be considered to have a greater degree of likelihood than any other available inference.[151] However, an inference will not be drawn, and error will not be established, if the circumstances established by the evidence do no more than 'give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture'.[152] An appellant challenging a finding of fact bears the burden not merely of showing that the facts for which he or she contends might be available or even correct, but of showing that the conclusions of the trial judge ought to be reversed.[153]

132 Ground 1 asserts that the trial judge erred by finding that Ms Fraser had not momentarily fallen asleep immediately before her motor vehicle left the roadway, and ground 2 asserts that he should have found that she had undergone a micro-sleep prior to her vehicle leaving the roadway.

133 The particulars to ground 1, and the written and oral argument advanced in support of both grounds, rely principally upon the circumstances of the accident, the evidence of Ms Fraser, and the evidence of Dr Hartley. It is submitted that the circumstances of the accident, in which a vehicle in sound mechanical condition left the sealed carriageway on a straight flat road, with no evidence of sudden steering, skid or brake marks prior to the vehicle leaving the roadway, all support the more probable inference that the cause of the vehicle leaving the roadway was Ms Fraser experiencing a micro-sleep. That inference is said to be supported by her inability to give any evidence of what occurred immediately prior to the vehicle leaving the roadway, and of her first recollection being the noise of the wheels of the vehicle striking the gravel on the verge. Dr Hartley's evidence is said to support the proposition that such an inference is more likely than any other available inference, because Ms Fraser was 'in the circadian nadir' and, as a consequence, would have been vulnerable to micro-sleep.

134 There were a number of competing inferences open on the evidence which were capable of providing an explanation for Ms Fraser's vehicle leaving the sealed carriageway and entering the verge. The two most obvious were inattention on the part of Ms Fraser, perhaps as a result of her mind wandering or being distracted by thoughts other than of driving, and the other was that she may have fallen asleep. The question for the trial judge, and for this court, is whether Ms Fraser had discharged the burden of establishing, on the balance of probabilities, that it was more likely than not that she fell asleep and that this caused her vehicle to leave the sealed carriageway.

135 The trial judge was correct to observe that Ms Fraser gave no evidence of recalling falling asleep. The highest her evidence could be put was that she assumed or concluded that she must have fallen asleep, because she was unable to proffer any other explanation for her vehicle leaving the roadway. In evaluating the inferences properly drawn from the evidence, it is of the utmost significance that Ms Fraser's evidence was to the effect that she had no accumulated sleep debt, having obtained seven or eight hours sleep following the shifts which she had worked on the Friday and Saturday nights preceding her accident, and that she did not experience any symptoms of fatigue or sleepiness prior to her accident. It is not open to find that such symptoms would have been masked by the stimuli she encountered while working, as Dr Hartley's evidence was to the effect that the masking effect of such stimuli would cease within 20 or 30 minutes of her commencing driving. It follows that, on his evidence, if in fact Ms Fraser was tired at the time of his accident, there is no reason why she would not have felt tired, or experienced symptoms of fatigue or sleepiness. On Dr Hartley's evidence, the absence of any of those symptoms strongly suggests that she was not in fact tired. On the evidence, the only thing that might have made Ms Fraser more than ordinarily tired after completing her work was the fact that she was in 'the circadian nadir'. However, again, if she was in fact tired by reason of her circadian rhythm, there is nothing in the evidence which would suggest any reason why she would not have experienced the usual symptoms of fatigue and tiredness. On the evidence, the lack of any such symptoms leads to the conclusion that, on the balance of probabilities, it is less likely that the cause of Ms Fraser's vehicle leaving the road was her falling asleep, and more likely than not that it was some other cause, such as inattention.

136 No error in the findings of primary fact made by the trial judge, or in the process of reasoning which he applied to those findings of fact has been established. Grounds 1 and 2 must be dismissed.

137 Ms Fraser's claim depends upon her establishing, as a fact, that she fell asleep prior to her vehicle leaving the roadway, because all the breaches of duty which she attributes to Burswood are said to have caused or contributed to her falling asleep. It follows that her failure to successfully challenge the finding that she did not fall asleep necessarily means that her appeal must fail. However, for the sake of completeness, I will deal with the other grounds of appeal.

Having found a duty by the Respondent to warn against the risk of falling asleep when driving home from her employment in the pre-dawn hours included a duty to warn of the effects of the circadian cycle and having found that the Respondent breached its duty in that no warning of the increased risk of falling asleep was given by the Respondent to the Appellant, the learned trial judge erred in fact and law in that the learned trial judge:

(a) Failed to find that the Appellant had undergone a micro-sleep, as set out in Ground 1;

(b) Ought to have found that the micro-sleep was caused by the effect on the Appellant of the circadian cycle;

(c) Ought to have found that the micro-sleep was a material contributing factor to the crash;

(d) Having found that there was breach of the duty to warn as to the effects of the circadian cycle and, if there was a micro-sleep, then ought to have found that the breach was causative of the accident.

139 As expressed, the ground misconceives the application and effect of the observation made by Gaudron J in Bennett v Minister of Community Welfare[154] that:

[G]enerally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.

(Relying upon observations made by Lord Wilberforce in McGhee v National Coalboard.[155])

140 Bennett was a case of a breach of duty by omission - relevantly, by failing to obtain legal advice with respect to the prospects of a successful claim for damages prior to the expiry of the relevant limitation period. So, in that case, the question of causation depended upon an assessment of the hypothetical circumstance in which the duty had been performed, and legal advice had been obtained. In the present case, similar considerations of a hypothetical nature arise from the trial judge's conclusion that Burswood breached its duty to warn Ms Fraser of the risk of driving home in the early hours of the morning, having regard to the masking effect and the circadian cycle. Having arrived at that conclusion, it was necessary for the trial judge to determine, on the balance of probabilities, what Ms Fraser would have done if she had been warned of those matters.

141 However, that question of fact - namely, what Ms Fraser would have done if she had been warned, is very different to the question of whether, as a matter of fact, Ms Fraser fell asleep before her vehicle left the road. That question of fact is entirely unrelated to the presence or absence of any duty to warn Ms Fraser, and is equally unrelated to any assessment of the effect which a warning would have had upon Ms Fraser's actions.

142 Put another way, there is no logical connection between the conclusion that Burswood had a duty to warn Ms Fraser of the risk of falling asleep, and the question of whether or not, as a fact, the risk had eventuated. As ground 3 is based upon a logical non sequitur, it must be dismissed. In any event, the issue raised in relation to causation by Gaudron J in Bennett is raised in ground 4 and can be dealt with accordingly.

143 Ground 4 challenges the finding made by the trial judge to the effect that Ms Fraser would not have delayed her journey home from work even if Burswood had performed the duty which he found and warned her of the risks involved.

144 As outlined, the principle enunciated by Gaudron J in Bennett, consistently with earlier observations by Dixon J in Betts v Whitingslowe[156] is of potential application to the issue raised by this ground. As in Commissioner of Main Roads v Jones,[157] the issue which this ground addresses is the question of what the plaintiff would have done if the defendant had discharged a duty to warn. However, if there is evidence to the effect that the breach of duty had no effect, or that the injury would have occurred even if the duty had been performed, the principle will not apply. So, in Jones, where the asserted breach of duty was a failure to warn motorists of the risks created by animals straying onto the highway, evidence to the effect that the plaintiff travelled at speeds well in excess of the speed limit, even though he was aware of the danger of straying animals, led to the conclusion that signs warning of that risk would have had no effect upon the speed at which he travelled.[158] Further, it has been accepted in this court that the principles enunciated in Betts v Whitingslowe, Bennett, Chappel v Hart[159] and Naxakis v Western General Hospital,[160] do not reverse the legal onus of proving causation.[161] That onus rests on the plaintiff who must establish, on the balance of probabilities that the defendant's breach of duty caused or materially contributed to the loss. So, in the words of Mason P,[162] causation may (but not must) be inferred if the loss suffered would be, in the ordinary course of events, expected to follow the breach. Or, as Keane JA put the matter,[163] the inference of causation is a logical deduction which may be made in the absence of evidence to the contrary. If there is evidence which suggests that it is equally probable that the breach of duty did not cause or materially contribute to the loss claimed, the plaintiff will have failed to discharge the onus of proving causation.

145 Because Ms Fraser suffered her injuries prior to 1 December 2003, which is the day upon which the Civil Liability Amendment Act 2003 came into operation, s 5C of the Civil Liability Act 2002 (WA), which renders evidence of an injured person as to what he or she would have done if the tortfeasor had not been at fault inadmissible has no application and, as I have noted, Ms Fraser was permitted to give evidence with respect to what she would have done if she had been warned. However, evidence of that kind, given long after the event, and with knowledge of the significance which the evidence might have for the success or otherwise of the claim is properly regarded with a degree of scepticism.[164] In this case, it is clear from the transcript of Ms Fraser's evidence on this topic that it was not given with great conviction, although, of course, the trial judge was in a better position to assess Ms Fraser's likely response to a warning than this court.

146 Ms Fraser finished her shift at 4.00 am. As I have noted, her evidence was consistently to the effect that after finishing her shift, her prime objective was to get home and get to bed so that she could sleep for seven or eight hours before rising around lunchtime. In support of this ground it is submitted that the trial judge erred by placing undue weight upon that evidence, because it was evidence of the practice which Ms Fraser had adopted in ignorance of the risks to which she was exposed and which Burswood had a duty to warn her about. However, in assessing what Ms Fraser would have done if warned, evidence of her practices and objectives is relevant, and was properly taken into account by the trial judge.

147 Also relevant was Ms Fraser's evidence to the effect that she had never experienced feelings of tiredness or fatigue on any occasion while driving to or from work. That is relevant because the warning which the trial judge considered it was Burswood's duty to provide would have included a reference to symptoms of fatigue and indicators of tiredness. As Ms Fraser had never experienced any of those symptoms or feelings, it would have been reasonable for her to conclude that she was not at risk, especially given her responsible management of her sleeping practices, which prevented the accumulation of any sleep debt.

148 Ms Fraser finished her shift on the morning of the accident at 4.00 am. If she had acted upon a warning given to her by Burswood to the effect that she was at risk because of her circadian cycle, it would have been necessary for her to defer her departure until sunrise, a little over an hour later, when the daylight would have provided a biological time cue to trigger a greater degree of alertness. However, the consequence of deferring her departure would have been that she would not have arrived home until it was broad daylight, with possible adverse impact upon her prospects of lengthy sleep of good quality and reducing the amount of waking time she would have to spend with her partner and daughter.

149 On all of the evidence it was open to the trial judge to conclude that on the balance of probabilities, even if Ms Fraser had received a warning in the terms which he proposed, she would not have deferred her departure, nor acted in any way other than the way in which she did act on the morning in question. In arriving at that conclusion, the trial judge had the advantage of assessing Ms Fraser's demeanour and personality in the course of her evidence, being an advantage which is not available to this court.

150 There is no reason to conclude that the trial judge erred in finding that even if Ms Fraser had been warned of the risks to which she was subject when driving home in the early hours of the morning it would have had no effect upon her behaviour on the morning in question. Ground 4 should be dismissed.

151 This ground challenges the conclusion of the trial judge to the effect that Burswood was not under a duty to arrange Ms Fraser's shifts so that they ended at or after sunrise, or at or after 6.00 am.

152 As I have noted, the trial judge relied upon a number of considerations to support his conclusion that Burswood was not under a duty to arrange Ms Fraser's shifts so that they finished at or after sunrise, or at or after 6.00 am. Those considerations included the fact that there was no evidence of any practice in any industry whereby shift times were stipulated by reference to the risks associated with workers driving home in pre-dawn hours. Nor was there any evidence of any publication by any relevant government department or agency proposing that such a practice should be adopted prior to Ms Fraser's accident. To the contrary, as the trial judge noted, the ACTU publication proposed that night-shifts should not start very late at night or in the early hours of the morning, because of risk to interruption or normal sleep, and should not extend beyond eight hours. Accordingly, as the trial judge noted, if a night-shift commenced before 10.00 pm, as recommended, it was inevitable that it would necessarily finish before 6.00 am if it was not to exceed eight hours.

153 The trial judge also properly took into account the evidence given with respect to the 'sleep gate', and the emphasis given by Dr Hartley in his evidence to the maintenance of proper sleeping patterns, so as to avoid an accumulated sleep debt. Adopting a practice of finishing shifts at or after sunrise would necessarily result in workers not arriving home until broad daylight had been established, with consequent risk to their sleeping patterns. Further, as the trial judge noted, the adoption of such a practice would expose workers to greater risks as a result of driving home when there was more traffic on the roads.

154 These considerations were quite sufficient to sustain the trial judge's conclusion that Burswood was not under a duty to organise Ms Fraser's shifts so that they finished at or after sunrise. Ground 5 should be dismissed.

155 Ground 6 is essentially concerned with the question of contributory negligence, and asserts that the trial judge should have found that the dominant cause of Ms Fraser's injuries was her vehicle leaving the road after she momentarily fell asleep, and not the fact that she panicked, overbraked and oversteered after she realised that her vehicle was on the verge. However, that issue only arises if it is concluded that Ms Fraser did in fact fall asleep before her vehicle left the road. As the grounds which challenge the contrary finding by the trial judge have not succeeded, this ground does not arise.

156 Burswood has served a notice of contention and cross-appeal. As Ms Fraser's appeal must be dismissed, for the reasons I have given, it is unnecessary to resolve the issues raised by Burswood. However, for the sake of completeness I will deal with them briefly.

157 Although the notice of contention is a little difficult to follow, it appears to be directed at an asserted failure of the trial judge to express a finding as to the cause of Ms Fraser's vehicle leaving the sealed carriageway and entering the verge, and contends that the trial judge should have found that the vehicle left the carriageway as a result of Ms Fraser's failure to drive with due care, attention and skill. This was later confirmed at the hearing of the appeal by counsel for Burswood.[165] However, it seems to me that this is, in effect, what the trial judge found. But in any event, his conclusion that Ms Fraser had failed to establish that she fell asleep immediately prior to the vehicle leaving the road was sufficient to dispose of her claim and no finding as to the reason why the vehicle left the road was necessary. For those reasons the notice of contention should be dismissed.

158 There are four grounds of cross-appeal. All challenge the trial judge's conclusion that Burswood was under a duty to warn Ms Fraser of the risks to which she was subject when driving home in the pre-dawn hours.

159 The first ground challenges that conclusion on the basis of an assertion that the trial judge fashioned the duty which he found by reference to the particular harm that had in fact eventuated and had thereby obscured the proper inquiry as to the ambit of the duty owed.[166] However, that is not what the trial judge did. That is apparent from his conclusion that performance of the duty which he found would not in fact have averted the risk because Ms Fraser would not have acted upon the warning. It is clear from the reasons given by the trial judge that he reviewed the evidence with respect to the state of knowledge of the risks to which night-shift workers were exposed by reason of accumulated sleep debt, the circadian cycle and the masking effect, and fashioned the duty which he found by reference to those matters, rather than the particular circumstances of Ms Fraser's accident. Ground 1 of the cross-appeal should be dismissed.

160 Ground 2 of the cross-appeal challenges the trial judge's conclusion that there was a duty to warn on the basis that it is said to be inconsistent with his conclusion that Burswood had achieved 'the balancing act' required between the competing interests that informed the safety considerations relevant to night-shift workers. However, there is no inconsistency in those conclusions. The trial judge's reference to the 'balancing act' was made in relation to the asserted duty to organise Ms Fraser's shifts so that they concluded at or after sunrise. In that context he was referring to the balancing of the various considerations which I identified above in my consideration of ground 5 of the appeal. There is no inconsistency between a conclusion to the effect that those competing considerations were appropriately balanced by Burswood, and a conclusion that nevertheless Burswood had a duty to warn its workers of the risks to which they were exposed.

161 Ground 3 of the cross-appeal challenges the trial judge's conclusion that Burswood had a duty to warn Ms Fraser of the risks to which she was exposed when driving home in the pre-dawn hours on the basis that it was wrong to conclude that Burswood knew or ought to have known of those risks.

162 However, the evidence was quite sufficient to establish the trial judge's conclusion that the effect of the circadian cycle, the risks of night-shift workers accumulating sleep debt, and the masking effect of stimuli in the workplace were all well-known phenomena prior to Ms Fraser's accident in 2001. The pamphlets and guidelines published by the government departments in Western Australia in 1998 to which I have referred, and the ACTU pamphlet published in 2000, together with the evidence of Dr Hartley, provide a quite sufficient basis for that conclusion.

163 The trial judge properly took into account the fact that much of this material was directed to those engaged in the transport industry. However, he also properly took into account the fact that Burswood employed a large number of night-shift workers and therefore would or ought to have known of the risks to which those workers were exposed as a result of finishing their shifts in the pre-dawn hours. That conclusion was open on the evidence and no error on the part of the trial judge has been demonstrated. Ground 3 of the cross-appeal should be dismissed.

164 Ground 4 of the cross-appeal challenges the trial judge's conclusion that there was a duty to warn Ms Fraser of the risks to which she was subject when driving home in the pre-dawn hours, essentially on the basis that those risks were obvious, particularly to an experienced night-shift worker like Ms Fraser.

165 The non-delegable duty of care which the law imposes upon all employers includes a duty to take all reasonable care to reduce the risk of their employees suffering physical harm in the course of, or as a

consequence of, their employment.[167] Plainly that duty extends to, and includes, a duty to warn employees of any risks of physical injury to which they are subject as a consequence of their employment. While there may be some risks which are so blindingly obvious that a warning of those risks would be entirely otiose and unnecessary, many of the risks identified by the evidence in this case are not of that character.

166 For example, it might be safely assumed that all night-shift workers would be aware that their normal sleeping patterns would be disrupted by working at night and trying to sleep during the day. However, it could not be safely assumed that all would be aware of the risk of accumulating a sleep debt as a result of repeatedly failing to obtain sleep of the length and quality which they require.

167 Nor could it be safely assumed that all night-shift workers would be aware of the circadian cycle and the effect which it would have upon their alertness during the pre-dawn hours, and the consequential increased risk of accidental injury due to inattention or tiredness while driving home in those hours.

168 Nor could it be safely assumed that all workers would be aware of the masking effect of exposure to stimuli and bright lights while at work, with the result that their true state of fatigue might not be apparent to them at the time they set out to drive home.

169 As the trial judge found, these are all matters which increase the risks to which night-shift workers are exposed when driving home in the pre-dawn hours. As they are not matters which are so blindingly obvious and well known to all that it could be safely assumed that all workers would be aware of them, the trial judge was correct to conclude that Burswood had a duty to warn its employees, including Ms Fraser, of those risks. Accordingly, ground 4 of the cross-appeal should be dismissed.

170 For these reasons, the appeal, the notice of contention and the cross-appeal should all be dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FRASER -v- BURSWOOD RESORT (MANAGEMENT) LTD [2014] WASCA 130 (S)

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : FRASER (nee BUTCHER) -v- BURSWOOD RESORT (MANAGEMENT) LTD [2012] WADC 175

Costs - Whether unsuccessful notice of contention and cross-appeal justify departure from general rule that successful party should recover its costs - Whether issues discrete and severable - Whether costs increased in significant and readily discernible way - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3)

Supreme Court Act 1935 (WA), s 37

Appellant to pay 80% of respondent's costs of the appeal

No order with respect to costs of notice of contention or cross-appeal

Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)

Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)

Carey v Commissioner for Consumer Protection [2013] WASCA 195 (S)

Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130

Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85

1 REASONS OF THE COURT: For reasons published earlier, this court dismissed the appeal, the respondent's notice of contention and cross-appeal.[168] The parties are agreed that the appellant should be ordered to pay the respondent's costs of the appeal, but are not agreed on the question of whether the respondent should be ordered to pay the appellant's costs of the notice of contention and cross-appeal, or alternatively, as to whether the respondent's costs of the appeal should be reduced to reflect its failure on those issues, and if so, to what extent. Directions were made for the exchange of written submissions on those issues and, by consent, that those issues be resolved on the papers.

2 The general principles governing the resolution of the contentious issues with respect to costs are well established. Although the court has a general discretion with respect to the costs of all proceedings before the court,[169] 'the Court will generally order that the successful party to any action or matter recover his costs'.[170] However, where a generally successful party has increased the costs by introducing an issue or issues on which that party failed, the court may order that party to pay the costs of that issue or issues[171] or, more commonly in practice, will reduce the costs payable to the successful party to reflect the costs attributable to the issue or issues on which that party failed.[172] However, the discretion to reduce the costs payable to the generally successful party by reason of its failure on one or more issues will generally only be exercised where the issues upon which the successful party failed are discrete and severable, and have added to the costs of the proceedings in a significant and readily discernible way.[173] Further, the discretion to reduce the costs of a generally successful party will be exercised with caution, for the reasons enunciated by this court in Bowen v Alsanto Nominees Pty Ltd:[174]

The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (McHugh J). Litigation is time-consuming, expensive and burdensome enough already.

In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].

3 The appellant suffered significant personal injury when the car which she was driving home after finishing her shift at 4 am left the road and rolled over four or five times. She alleged that the car left the road because she fell asleep and that her employer, the respondent, was liable for the damage which she suffered because of various breaches of duty connected with the risk of her falling asleep while driving home in the early morning.

4 The trial judge found that the respondent had a duty to warn the appellant of various aspects of the risk of falling asleep while driving home in the early morning, but rejected the appellant's case with respect to the other breaches of duty alleged. However, he found that the appellant had failed to establish that the vehicle which she was driving left the road because she fell asleep, and further found that even if the respondent had warned the appellant of the risks to which she was subject, it would not have altered her actions or the events which occurred. Accordingly, the appellant's claim was dismissed.

5 There were six grounds of appeal. The first two grounds challenged the finding that the appellant had failed to establish that her vehicle left the road because she fell asleep. Those grounds necessitated a detailed review of the evidence relating to the accident and the expert evidence relating to the risk of the appellant falling asleep while driving home. Each of those grounds was dismissed. As the appellant's claim depended critically upon her establishing that she suffered her injuries because she fell asleep, the dismissal of those grounds necessarily meant that her appeal had to be dismissed, and the notice of contention and cross-appeal became otiose. However, the other grounds of appeal, the notice of contention and the cross-appeal had been fully canvassed in both written and oral submissions, and because of the prospect of further appeal, it was necessary for the court to deal with those issues in its reasons.

6 The remaining grounds of appeal raised issues with respect to causation, contributory negligence, and an assertion that the trial judge should have found that the respondent breached a duty to arrange the appellant's shifts so that they ended later in the morning. All were dismissed.

7 The respondent asserted that the decision of the trial judge should be upheld on the ground that he should have found that the appellant's vehicle left the road as a result of her failure to drive with due care, attention and skill. The issues which it raised were coextensive with the issues raised by grounds 1 and 2 of the appeal and did not add to the costs of the appeal in a significant and readily discernible way. The notice of contention was dismissed because the trial judge had, in effect, found that the appellant had failed to drive with due care, attention and skill, and in any event, his finding that the appellant had failed to establish that she fell asleep prior to the vehicle leaving the road was sufficient to dispose of her claim, and no finding as to an alternative cause of the accident was necessary.[175]

8 There were four grounds of cross-appeal. All challenged the trial judge's conclusion that the respondent had a duty to warn the appellant of the risks to which she was subject when driving home in the pre-dawn hours. Obviously enough, because the appellant had succeeded on that issue at trial, the issues raised by the cross-appeal were quite separate and distinct from the issues raised by the appeal. Those issues included the extent to which the respondent knew or ought to have known of the relevant risks, and the issue of whether the risks were so obvious as to obviate the respondent's duty to warn the appellant of them. Those and the other issues raised by the cross-appeal were canvassed in the written submissions exchanged by the parties, and in oral argument. The economy with which the court's reasons for dismissing those grounds were expressed, having regard to the failure of the appeal, does not provide a reliable guide to the extent of the work properly undertaken in preparing and presenting argument on those issues, which could have been critical to the ultimate disposition of the appeal.

9 As we have noted, the notice of contention did not give rise to discrete and severable issues which added to the costs of the appeal in a significant and readily discernible way. Accordingly, the dismissal of the notice of contention provides no justification for departing from the general principle that costs should follow the event.

10 However, the issues raised by the cross-appeal were discrete and severable and quite separate and distinct from the issues raised by the appeal. The work properly undertaken to prepare and present argument on those issues was significant and can be readily discerned from a brief review of the appeal books and the transcript of oral argument. Accordingly, notwithstanding the court's general hesitation to embark upon an analysis of the issues upon which each of the parties was successful for the purpose of making an award of costs, this is one of those cases in which the costs of the proceedings were increased in a significant and discernible way by reason of the successful party's introduction of issues upon which it failed. It is therefore appropriate to adjust the costs orders to take account of the respondent's failure on those issues.

11 As we have noted, in cases such as this, the usual practice of the court is to reduce the costs payable to the successful party by a proportion which reflects the contribution which the issues upon which that party failed made to the overall costs of the proceedings. That practice recognises the desirability of reducing the ambit of any taxation of costs in the interests of the parties and in the interests of the efficient utilisation of the limited resources of the court. The extent of the reduction in the costs payable to the successful party in any particular case will be assessed by the court as a matter of impression rather than science. In this case, it is our view that the respondent's costs should be reduced by 20% to reflect its failure on the issues raised by the cross-appeal. Accordingly, the court will order that the appellant pay 80% of the respondent's costs of the appeal to be taxed if not agreed, and that there will otherwise be no order with respect to the costs of the notice of contention or cross-appeal.

[1] Fraser v Burswood Resort (Management) Ltd [2012] WADC 175 (Reasons).

[16] Reasons [170]; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [70] (Martin CJ).

[147] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [27] (Gleeson CJ, Gummow & Kirby JJ); Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 [60] (Heydon JA, Spigelman CJ & Sheller JA agreeing).

[148] Fox v Percy [23] (Gleeson CJ, Gummow & Kirby JJ).

[149] Fox v Percy [23] (Gleeson CJ, Gummow & Kirby JJ).

[150] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184 [24]; [1992] FCA 184; (1992) 35 FCR 359.

[151] Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480 - 481 (Williams, Webb and Taylor JJ).

[152] Holloway v McFeeters, referring to Richard Evans & Co Ltd v Astley [1911] AC 674, 687 (Robson LJ).

[153] Williams [60]; Jones v Bradley [2003] NSWCA 81 [113] - [116] (Santow JA, Meagher & Beazley JJA agreeing); Adler v Australian Securities and Investments Commission [2003] NSWCA 131 [17] (Giles JA, Mason P & Beazley JA agreeing); Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 [52] (Giles JA, Ipp & Basten JJA agreeing).

[154] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 420 - 421.

[155] McGhee v National Coal Board [1972] 1 WLR 1, 6 - 7.

[156] Betts v Whitingslowe [1945] HCA 31; (1945) 71 CLR 637, 649 (Dixon J).

[157] Commissioner of Main Roads v Jones [2005] HCA 27.

[158] Commissioner of Main Roads v Jones [26] (McHugh J), [80] - [81] (Callinan J).

[159] Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [25] (McHughJ), [62] (Gummow J), [93] (Kirby J), [110] (Hayne J).

[160] Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 [82] (Gleeson CJ), [128] (Callinan J).

[161] Fitzpatrick v Job trading as Jobs Engineering [2007] WASCA 63 [224] - [227] (Buss JA, Steytler P agreeing).

[162] TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380.

[163] Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2006] QCA 335 [277] - [278].

[164] Chappel v Hart, 272, [93] (Kirby J); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [26] (McHugh J), [89] (Gummow J), [214] (Callinan J).

[166] As explained in Kuhl v Zürich Financial Services Australia [2011] HCA 11; (2011) 243 CLR 361 [19] - [20] (French CJ & Gummow J).

[167] Czatyrko v Edith Cowan University [2005] HCA 14 [12].

[168] Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130.

[169] Supreme Court Act 1935 (WA), s 37.

[170] Rules of the Supreme Court 1971 (WA), O 66 r 1(1).

[172] Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 [28] per Owen J.

[173] Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7]; Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [8]; Carey v Commissioner for Consumer Protection [2013] WASCA 195 (S) [2].

[174] [2011] WASCA 39 (S) [6] - [7].

[175] Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 [157].