44 Clause 81A of the Regulation contains the definitions in the 2005 Regulation, in particular the definition of long distance, to which we will refer later in this decision.
45 Clause 81B(1) prohibits an employer from causing or permitting its employees to transport freight long distance unless the employer has assessed the risk of harm from fatigue; and unless, to the extent to which the employer's activities contribute to that risk, the employer has eliminated the risk, or (if that is not reasonably practicable) has controlled the risk. The same obligation is placed on head carriers, consignors or consignees when entering into contracts with self-employed carriers, by virtue of clauses 81B(2) and (3).
46 Individual driver fatigue management plans are required by cl 81D of the Regulation. This means head carriers, consignors and consignees must prepare such plans which must address the following matters in cl 81D(4):
(a) trip schedules and driver rosters, taking into account the following:
(i) times required to perform tasks safely,
(ii) times actually taken to perform tasks,
(iii) rest periods required to recover from the fatigue effects of work,
(iv) the cumulative effects of fatigue over more than one day,
(v) the effect of the time of day or night on fatigue,
(b) management practices, including the following:
(i) methods for assessing the suitability of drivers,
(ii) systems for reporting hazards and incidents,
(iii) systems for monitoring driver's health and safety,
(c) work environment and amenities,
(d) training and information about fatigue that is provided to drivers,
(e) loading and unloading schedules, practices and systems, including queuing practices and systems,
(f) accidents or mechanical failures.
47 A person who prepares a driver fatigue management plan must ensure that their activities are consistent with the plan (cl 6(b)) and must make a copy of the plan available to each driver covered by the Plan (cl 6(c)). Clause 81F requires records to be kept and retained for up to five years and to be made available to an inspector or authorised representative of the driver.
The Hitchcock judgment
48 All parties relied on the two recent judgments of Walton J in what are collectively referred to as the Hitchcock judgment (WorkCover Authority of New South Wales v Hitchcock (2004) 135 IR 377 and WorkCover Authority of New South Wales v Hitchcock (2005) 139 IR 439).
49 The judgment concerned two prosecutions brought under ss 15, 16 and 50 of the OH&S Act following the death of a long haul driver, Mr Darri Haynes, after a collision on the Pacific Highway near Grafton on 1 September 1999. At paragraph [3] of the first judgment, His Honour said:
3 The evidence painted a sobering picture of the risk for long distance truck drivers of driving when fatigued, the very real danger attendant upon that risk and of a haulage company which paid little (if any) heed to the risk either to its employed drivers or to anyone else at risk of an accident due to proximity to a fatigued truck driver. On the contrary, as I later find, instead of ensuring against the risk, as it was legally obliged to do under the Act, the systems of work operated by the Company (which did not include any effective fatigue management measures) exacerbated them. A significant part of the defendant's answer to the overwhelming evidence of failures in the Company's systems of work, supported by both the evidence relating to Mr Haynes and the evidence given by other drivers employed by the Company at the time of the accident, was that a risk of fatigue, albeit caused by a failure of the Company, was not enough: the prosecution had failed if it could not establish that Mr Haynes was actually fatigued at the time of the accident. As I discuss later, this contention was wrong in law and principle. Moreover, the evidence ultimately disclosed beyond reasonable doubt that Mr Haynes was fatigued at the time of the accident.
50 At paragraph [12], His Honour records the persons who gave evidence in the proceedings:
12 The court received evidence from four long haul truck drivers (Mr Walker and three former employees of the Company: Messrs McLennan, Jones and Everingham); three police officers (Messrs McFarlane , Clarke and Fennell); Inspector Templeton of the WorkCover Authority of New South Wales ("WorkCover"); four officers of the Roads and Traffic Authority (Messrs O'Neill, Martin, Montgomery and May); Mr Haynes's partner of nineteen years, Ms Campbell; a depot manager, Mr Cooper, of Scotts Transport Industries; and three experts: Dr Judith Perl, consultant pharmacologist; Mr Dick van den Dool, traffic engineer; and Associate Professor Ann Williamson, fatigue expert.
51 His Honour relied on the expert evidence of Associate Professor Williamson in concluding:
42 It is clear from Associate Professor Williamson's expert evidence, and I have no hesitation in finding beyond reasonable doubt, that driving whilst fatigued is a risk to health and safety. In particular, I find that:
(a) Long hours of working, especially at night, lead to fatigue;
(b) Six hours of sleep during the core period of midnight to 6am (or an equivalent restorative sleep during day time, which may take longer due to the deficiencies of day time sleep) is the bare minimum to manage fatigue appropriately;
(c) The high levels of attention required for driving will also contribute to fatigue;
(d) Chronic fatigue can develop over a series of long work days in the absence of adequate rest;
(e) Sleep is the only way to effectively alleviate fatigue;
(f) The most beneficial, restorative sleep is taken between midnight and 6am. Longer periods of day-time sleep are necessary to reduce a build-up of fatigue;
(g) Driving when fatigued is extremely dangerous because the skills necessary for driving - paying attention moment by moment - are significantly impaired by fatigue;
(h) The nature of fatigue makes this situation even more dangerous: the more tired a driver becomes, the less able they are to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop; and
(i) Fatigued drivers have a higher risk of crashing.
52 Walton J undertook a detailed examination of Mr Haynes' last week of work and said at paragraphs [160] and [161]:
160 It is important to realise that, during the preceding analysis of Mr Haynes's last week, every assumption was made in favour of the defendant to maximise the calculation of Mr Haynes's opportunities for rest. No allowance was made for queuing (despite the consistent evidence of three other drivers employed by the Company that this was a frequent, time-consuming part of their work during which sleep was not possible), nor was anything other than the minimum (the time nominated by the Company, except in the case of bricks from a yard) allowed for loading and unloading, despite the evidence of Associate Professor Williamson, based on two national surveys of 1,000 truck drivers, that drivers spend on average between five to nine hours a day loading and unloading. No allowance was made for other necessary work, such as time spent making or receiving work telephone calls, completing paperwork, and inspecting the truck. Finally, no allowance was made for necessary personal activities such as eating, grooming, washing, and, given the weekly long absences from home, talking to family and friends from time to time. I reject the suggestion in the defendant's submissions that such telephone calls were a luxury that should never have been given precedence over sleep and note that many of them appear to have been made or received while Mr Haynes was driving.
161 Notwithstanding these unrealistic assumptions (when applied unremittingly over seven days), and despite my acceptance that Mr Haynes's rest period of 24 hours on Saturday 28 August 1999 cancelled all fatigue which may have accrued, in my detailed analysis of one week of Mr Haynes's employment with the Company (which no-one suggested was anything other than typical in terms of work loads and practices), I have found (at paragraphs [91], [132] and [133]) beyond reasonable doubt that on two occasions it was impossible for Mr Haynes to have had the requisite 6 hour continuous break in every 24 hour period. Quite the contrary: in both instances, I have found, to the criminal standard, that Mr Haynes was not only at risk of driving when fatigued: he was in fact fatigued and that this significantly impaired both his ability to drive safely, and his ability to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop.
53 At paragraph 165, His Honour said:
Ultimately, of course, the Court must determine whether there was a risk to Mr Haynes's health and safety: I have found (at paragraphs [91] and [132]) that it is indisputable that there was such a risk (the risk of driving when fatigued) on several occasions including at the time of the accident. Moreover, I have found to the criminal standard that Mr Haynes was exposed to danger, not merely a risk: he was in fact fatigued at the time of the accident (at paragraph [159]), and this fatigue could not have been alleviated by four hours of rest that afternoon, even if they were taken without interruption. Whether or not the fatal accident was directly caused by Mr Haynes's fatigue is not determinative of the charges. Nonetheless, having examined the matter in such detail, I will record my conclusions following an overview of the evidence concerning the accident.
54 His Honour referred to the fact that medical evidence disclosed that Mr Haynes' body was later found to contain methamphetamine. Medical evidence from Dr Perl was:
181 Under cross-examination, Dr Perl agreed that methamphetamine was psychologically addictive, and that a long-term user may believe that they had to take the drug in order to stay awake when in fact this may not be the case.