Kuhler v Inghams Enterprises P/L & Anor [1997] QCA 386

Before turning to the case as presented it should be noted that the learned trial Judge found as a fact that the appellant fell asleep at the wheel though it would appear that he reached that conclusion with some hesitation. She claimed to have no recollection of the accident or of any part of the drive home. However Dr. Morrison, upon whose evidence the appellant relied, thought that if the appellant had drifted into a micro-sleep, which in effect she alleged, it would be surprising if the erratic movement of her vehicle, observed by others, did not cause her to wake up. His Honour also thought that the appellant's evidence was "not always compelling". In making that finding his Honour had in mind not only what he thought was her surprising lack of recollection of the lead up to or the cause of the accident, but also some of her other evidence. In any event it was accepted in this Court that the appellant fell asleep at the wheel of her car and that this caused her accident.

Prior to the week commencing 14 March 1994 the appellant worked shifts commencing at 3.00 p.m., nominally finishing at 11.30 p.m. but usually involving overtime sometimes up till 1.30 a.m. The Friday shift began a little earlier than the others and was shorter. For some time prior to the above date the respondent had been considering ways of increasing production. The result of this, from the appellant's point of view, was that, commencing on 14 March, on Mondays and Wednesdays she worked a longer shift commencing at 5.30 p.m. and extending nominally to 5.30 a.m. although they were generally shorter than this, and on Tuesdays, Wednesdays and Fridays continued to work her former hours.

The appellant's case at trial, based on the evidence of Dr. Morrison, who specialized in sleep disorders, was that this alternating shift roster reduced her opportunity for sleep and that, over the two week period during which these alternating shifts had continued prior to her accident she would have accrued substantial sleep deprivation. Dr. Morrison said that it was -

"a well-known principle of shift management that if you require a worker to work at night and sleep in the daytime you must give that worker a number of days over which to acclimatize to the new different setting of the body's clock. ... That is one of the problems. Another problem with this particular shift structure is the return time. Now, the return time is the time between the end of one work period and the beginning of the next and for most day workers that would be about 16 hours, that is to say there would be at least 16 hours from the end of one work period to being required to work again. It appears from the work shift that the plaintiff was expected to adhere to during the final fortnight before the accident that on at least two occasions per week her return time was significantly less than 16 hours and there are, in fact, international recommendations that return times should be a minimum of 16 hours and preferably more than that. ... The third requirement would be that for every day of the working week or working fortnight or whatever it is the shift should be the same and if it is night work then it should be night work every night and not alternating between night and day work on alternate days."

For the purpose of this appeal Dr. Morrison's views may be accepted as correct. Indeed they were uncontradicted at the trial. But an initial difficulty which the appellant had in proving that the imposition of this alternating shift roster was negligent was in showing that there was anything which ought to have put the respondent on inquiry that it would or might have the consequences to which Dr. Morrison deposed.

In the first place the hours were not excessive; they amounted to a little over 53 hours a week. There are many of us in the community who work much longer hours than that. Moreover one would have thought that, from her previous work roster, the appellant would have been acclimatized to working at night and sleeping, at least in part, during the day.

Secondly there was no evidence that Dr. Morrison's views were known to the respondent or to employers generally. It may be accepted that these views were known among sleep specialists. It may also be accepted that there was a body of literature which verified these views. Dr. Morrison referred in particular to a publication of Harvard University based on empirical studies. But the only evidence from which it might be inferred that this knowledge, or any part of it, extended beyond this narrow coterie of specialists was Dr. Morrison's evidence that the International Labour Organization in Geneva published guidelines on shift work strategies and recommendations. However he did not elaborate on what those guidelines were; whether, in particular, they dealt with alternating shift rosters. More importantly he did not say, and perhaps he did not know, how widely these guidelines were known outside those who, like Dr. Morrison, had a special interest in the topic. It could not be inferred, for example, that these guidelines were known to anyone in industry in Australia. It was not suggested that there was any other information known to or generally available to employers which indicated that there was any danger to employees arising out of alternating rosters of this kind.

It was submitted on the appellant's behalf that the respondent, because it was embarking on a course which was unique, ought to have made inquiries before doing so. However the argument fails at both its stages. There was no evidence that what the respondent was doing was unique. The evidence went no further than that Dr. Morrison did not know of any other cases where alternating shift rosters were implemented. But the extent of his knowledge of industry in this respect was not explored. Secondly it was not shown that if inquiries, for example of any industry bodies (the appellant suggested in this respect the Department of Workplace Health and Safety), had been made by the respondent such inquiries would have revealed any of the opinions expressed by Dr. Morrison or, more generally, that there was any risk to the health or safety of employees in the implementation of an alternating shift roster of this kind.

In short the appellant's case failed because she could not show either that the change which the respondent implemented was one which ought to have put it on inquiry as to the health or safety of its workers or that, if it has made any such inquiry as was reasonable in the circumstances it would have shown that there was any risk to health or safety of its workers. This was the first basis upon which the learned trial Judge rejected the appellant's claim. Despite the able argument of Mr. Geraghty to the contrary we are of the opinion that the learned trial Judge was plainly right in his conclusion.

The learned trial Judge would, in any event, have decided against the appellant on the basis that she failed to establish a causative link between any breach of duty and the accident in which she was injured. Having reached the conclusion which we have it is unnecessary to consider this question in detail. However there is much to commend his Honour's view in this respect also. Shortly prior to her accident the appellant had completed a shift of a little under 12 hours which had commenced at 5.30 p.m. on Monday afternoon. But before that she had not worked since about 8.00 p.m. on the previous Friday. However she had had an extremely active weekend. She and her husband bred blue cattle dogs and on the Saturday of that weekend they showed them at a dog show at Durack. That had involved them in rising early on Saturday morning and in considerable work that day, including travelling. On the Sunday they again rose early and travelled to the Gold Coast to help her father and stepmother move house. At the end of what was a long day on the Sunday, when they returned home the dogs had to be attended to. On the Monday she again rose early, although she was not required at work until 5.30 p.m., to attend to housework which had been left undone on the weekend. It would therefore be fair to infer that her weekend work, unconnected with her employment, had caused her to be tired when she arrived at work on the Monday afternoon. In addition she and her husband had recently moved to Jimboomba which entailed a 40 minute drive to work. As his Honour said, the appellant's case would have been considerably stronger in this respect had her accident occurred on Thursday or Friday rather than after her first shift of the week. In the end he was unable to conclude that her work activities caused her to suffer from sleep deprivation at the time of her accident.

For the reasons already given the appeal should in our view be dismissed with costs.