Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 2003 1 (21)

LEGAL IMPLICATIONS OF FATIGUE IN THE
AUSTRALIAN TRANSPORTATION
INDUSTRIES
CHRISTOPHER JONES,* JILLIAN DORRIAN AND DREW DAWSON

I

n recent years, changes in the workplace have lead to increases in the incidence of
fatigue and fatigue-related injuries. At the same time, there has been an increase in
the scientific understanding of fatigue. The present article discusses the primary statutory
instruments that regulate duties in the workplace to manage fatigue: Occupational Health
and Safety legislation and regulations applicable to the road transport and aviation
industries. Following this, the manner in which the criminal law and civil law address
fatigue is also considered. In addition, other statutes exist that do not directly address
fatigue management duties but must be considered when fatigue is addressed in the
workplace. Workers Compensation legislation is discussed in this regard. It is argued
that as they stand, the laws that seek to regulate fatigue are inconsistent with each
other and with current scientific understanding. Suggestions are presented to address these
shortcomings, and a proposal is made to create an offence of fatigued driving.

INTRODUCTION

There is an increasing trend for industries to operate around-the-clock. Growing
demand for goods, services and enhanced profitability often result in a situation
where existing employees carry an increased workload. This requirement for work
during time traditionally reserved for rest or recreation places strain on workers.
One of the costs involved is an elevation in worker fatigue levels. Fatigue is a
concept that most people intuitively understand, yet is notoriously difficult to
define. Nevertheless, the definition of fatigue used in this article is:
. . . subjectively experienced disinclination to continue performing the task at hand.
It generally impairs human efficiency when individuals continue working after they
become aware of their fatigue. The interacting causal contributions to fatigue are
the length of continuous work spells and daily duty periods, time available for rest
and continuous sleep and the arrangement of duty, rest and sleep periods within each
24-h cycle (Brown 1994).

That is, work-related fatigue is influenced by the amount of time an individual
has been at work, the time of day and the duration and timing of prior sleep

* Christopher Jones is affiliated with the Centre for Sleep Research, University of South Australia,
Queen Elizabeth Hospital, 5th floor, Basil Hetzel Institute, Woodville Road, Woodville, SA 5011,
Australia. Email: chris.jones@unisa.edu.au The authors wish to acknowledge the assistance of Adam

Fletcher and all those who read and commented on drafts for their assistance in the production
of this paper.

THE JOURNAL OF INDUSTRIAL RELATIONS, VOL. 45, NO. 3, SEPTEMBER 2003, 344–359

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periods (for discussions on these issues see Folkard 1981; Dawson and Fletcher
2001; Rosa 1995).
Fatigue is most noticeable in industries that are heavily reliant on 24-hour operating systems, such as transport and manufacturing. It is also in these industries
that the consequences of fatigue can be most lethal and destructive. The present
paper will focus particularly on the situation in the transportation industries.
Fatigue is often cited as a contributing factor in transport fatalities (for a discussion see Dinges 1995), industrial settings (Åkerstedt, 1991) and other catastrophic
events worldwide (Lauber and Kayten 1988; Mitler et al. 1988). In recent years,

significant disasters have occurred in Australia in which fatigue has been implicated. For example, in his findings on the fatal truck crash near Blanchetown
on 3 August 1996, the South Australian Coroner found that “[the driver of
the truck’s] manner of driving was substantially caused by extreme fatigue which
finally resulted in him undergoing what are known as ‘micro-sleeps’” (Coroner
of South Australia 1999, p. 41). In response to this increasing problem, the
parliaments and ultimately the courts have begun to address fatigue as a
legal issue.
At present, there are separate approaches to fatigue for individual areas of law,
and an organisation seeking to address fatigue faces a daunting matrix of laws.
One major difficulty is that the approaches have not been considered in light of
one another, or in light of current scientific understanding. The purpose of
the first part of the present article is to analyse the most important statutory
and common law duties in relation to the management of fatigue in transport.
A functional approach will be taken. That is, the most significant laws that individuals and companies need to be aware of when addressing fatigue in transportation will be analysed. Firstly, there will be a consideration of the two major
statutory instruments imposing duties: Occupational Health and Safety legislation
(OHS) and the specific transport regulations directed towards fatigue management (e.g. National Road Rule [Fatigue management] Regulations). Civil and criminal
law also impose duties of relevance to fatigue management, and in relation to
this, the paper will then discuss the negligence aspect of civil law and criminal
law as it pertains to culpable driving. After specific statutes and the general
law are discussed, the role of Workers Compensation legislation will be

addressed.
Within the last two years, both the federal government and the New South
Wales government have commissioned substantial reports that address fatigue
in transport (House of Representatives Standing Committee on Communications,
Transport and the Arts 2000; Quinlan 2001). Throughout the present article
references will be made to the recommendations and discussion contained in
these reports. In all cases, unless specified, the law discussed will be the law
of South Australia.
In the second part of the present article, there will be discussion of a continuum
of fatigue paradigm that is recommended as a modification to the legal understanding of fatigue. This approach, based on scientific research, contends that
there is a dose-response relationship between fatigue and impairment, mediated
by circadian factors, so that increasing fatigue produces increasing impairment.

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The aim of this approach is to provide a more coherent and evidence-based
framework than currently exists in the criminal and civil law. It will be argued
that this continuum approach also has utility in other areas of law. Finally, there
will be a proposal for the creation of a fatigued driving offence that utilises the
continuum of fatigue paradigm.

OCCUPATIONAL HEALTH

AND

SAFETY

Occupational Health and Safety legislation imposes a general duty on an employer
to manage workplace safety. Fatigue management forms part of this duty, as shown
in the 1999 prosecution of a major trucking company by the Victorian WorkCover
Authority for unsafe acts in relation to driving hours (R v Don Watson Pty Ltd
and Pierce Philip Gage, County Court of Victoria, Hassett J, 11 August 1999,

Unreported). The company and the manager responsible were both fined: the
company $12 000 and the manager $3000.
In South Australia, the Occupational Health, Safety and Welfare Act 1986
(OHSWA) is the primary piece of OHS legislation.1 Section 19 imposes a
general duty on the employer to take reasonable care for the health and safety
of employees.2 The duties imposed under the OHSWA are designed to be preventative, rather than retributive. Therefore, an unsafe practice (i.e. a failure to
comply with the general duty) may be determined as a matter of fact, and
may be prosecuted even in the absence of injury. The legislation adopts an outcome-based approach to the duties that it imposes. In other words, the legislation sets out a general standard that must be achieved by an employer. However,
the specific way in which this general outcome is attained rests with the employer.
The rights and obligations of the parties in OHS legislation are defined by
the use of certain key words. A distinction is made between ‘employee’ and
‘self-employed worker’.3 The concept of a ‘workplace’ is also defined (OHSWA,
s. 4[1]).4 These issues are particularly important for the trucking industry as it
consists of many independent contractors whose legal relationship to the other
contracting party may vary depending on the statutory context, and the particulars of their contract. Additionally, when considering whether workplace fatigue
is managed, the issue of what constitutes ‘work’ is relevant because employers
are only liable for ‘work’. The distinction between work and non-work is very
important because there are patterns of fatigue-related injuries not covered
by OHS legislation, for example, injuries that occur commuting to and from
workplaces.

General duty of the employer to employees
The general duty of the employer is very wide, requiring a comprehensive
system that prevents injury to workers. Thus, an employer may still be found
to have breached the duty, even if there was negligence on behalf of the worker
(Cullen v State Rail Authority [NSW] [1989] 37 IR 207). In addition, an employer
must not only create a safe system of work, it must enforce it, even in the case
of experienced employees. However, it must be noted that there is also a duty
on the part of the employee, imposed by s. 21, to take reasonable care to
protect their own health. This duty is independent of, and less onerous than,

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the duty of the employer as it is expressed in terms of reasonable steps to avoid
injury.

In addition to the general duty imposed by s. 19(1), s. 19(3) of the OHSWA
provides more detail about the general duty imposed in s. 19(1), and particularises
specific duties that are important elements of the general duty. Complying with
the individual duties contained in s. 19(3) does not absolve an employer from
the general duty (Chugg v Dunlop [1988] VR 411 at 414 per Fullagar J).
Nevertheless, the fact that an employer did comply with the specific duties may
be used as evidence that they had complied with the general duty.
The duty imposed by s. 19 is an offence of strict liability. Therefore, a
conviction under OHS legislation does not require that the offender knows
that their action failed to comply with the requirements of the Act. The only
qualification to this is that the employer is required to do what is ‘reasonably
practicable’.
The question of what is ‘reasonably practicable’ involves a balancing procedure
whereby the cost of mitigating the risk in question is weighed against its severity,
the current state of knowledge about it and the availability and suitability of
countermeasures. It does not mean that employers must ensure accidents never
happen; rather, it requires that the employer take into account all plausible ways
of minimising danger while acknowledging all of the ways that humans may fail
(Holmes v R E Spence & Co Pty Ltd [1993] 5 VIR 119, per Harper J). Additionally,
it has been established that, although persuasive, a practice that is universal

throughout an industry is not conclusive evidence that the duty has been complied with and that safer practice was not reasonably practicable (Martin v Boulton
and Paul (Steel Construction) Ltd [1982] ICR 366). Community knowledge about
fatigue and fatigue-related injuries is now well established. It would be very
difficult for any employer to claim that fatigue research was ‘an esoteric field of
scientific knowledge’ (Softwood Holdings Pty Ltd v Stevenson, Industrial Relations
Court of SA, Jennings SJ, Cawthorne and Parsons JJ, 24 November 1995,
Unreported) and escape liability by pleading ignorance.
The adoption of an outcome-based system introduces some legal uncertainties
regarding the relationship between the general duty and specific regulation
imposed by other instruments. Indeed, it is possible for a trucking company to
comply with the specific driving hour regulations, while failing to achieve the
OHS general duty requirements (see Appendix 1). Conversely, problems arise
again when an employer complies with the general duty, but fails to comply with
all specific regulations. To address some of these issues, the legislation has
created an exemption process that allows an employer to apply to be exempted
from specific OHS regulations due to their particular circumstances (OHSWA,
1985 [SA] s. 67). Of course, this only addresses conflicts between OHS legislation and regulation, not between OHS duties and other laws. These other
conflicts will need to be resolved by the normal statutory interpretation
processes. Rozen (1996) has proposed an alternate approach that could be adopted
to reconcile the potential conflict between the general OHS duty and specific

OHS regulations. He proposes that regardless of specifics, employers have an
all-encompassing duty to control safety and the only question to be asked is

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whether the action taken was ‘reasonable’. This proposal has the advantage of
simplifying the current complexities in this area. However, a general standard of
‘unreasonableness’ is unhelpful to an employer looking to identify what the law
requires. Clearly, this is an area that would benefit from further reform.
General duty of employers to non-employees
As it is not only employees’ safety that is in danger at a workplace, OHS legislation is not limited solely to the protection of workers at a workplace. Such a
limitation would seriously reduce the effectiveness of the legislation, especially

in an industry such as trucking, which is characterised by large amounts of
subcontracting and high exposure to the public. This has been addressed in
two ways. First, the general duty of the employer also has been held to cover
independent contractors who would otherwise not be defined as employees. The
House of Lords reasoned that independent contractors must not pose a threat
to the safety of employees (R v Swan Hunter Shipbuilders [1982] 1 All ER 264).
The practical result of this is that an employer is also bound to maintain a safe
workplace for the independent contractor.
In addition, s. 22 of the OHSWA provides for a duty of an employer to take
reasonable care to avoid affecting adversely the health and safety of others by an
act or omission at work. Thus, this provision encompasses a duty towards the
public, self-employed subcontractors and any others who may not be covered by
the employer’s general duty. For example, it has been held that exposure of the
general public to legionnaire’s disease bacteria due to ineffective cleaning
procedures at air conditioning towers (R v Board of Trustees of the Science Museum
[1993] ICR 876), and a failure to maintain a safe working environment for
an employee of a contractor (R v Associated Octel Co. Ltd [1996] 4 All ER 846)
constituted breaches of the equivalent English legislation. The implications
of this duty in transport industries are that not only transport companies and
self-employed drivers have duties to manage fatigue, but also, freight forwarders,
consigners and ultimately clients, all have employees to carry on their businesses
and, therefore, owe a s. 22 duty to others. It can be seen that the duties created
in OHS legislation can overlap, and in a given situation, more than one duty may
be breached by the same act or omission, by one or more entity.
Approach of Western Australia and the Northern Territory to fatigue management
in road transport
The eastern states and South Australia have adopted the national draft Road
Transport Reform (Driving Hours) Regulations (discussed below) to manage fatigue
in commercial road transport. In contrast, Western Australia and the Northern
Territory have adopted regimes that specifically require employers to manage
fatigue in commercial road transport as part of their general OHS duty of care.
These regimes were developed and adopted as a result of consultations between
all of the stakeholders in the industry and, as such, they represent an example
of some of the legal issues surrounding fatigue that have been addressed in
coordinated fashion. Western Australia and the Northern Territory each have
adopted under their respective OHS legislation, a Code of Practice for Commercial
Vehicle Drivers, which is slightly different in each jurisdiction. These codes are

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not mandatory, but provide industry participants with a guide to what constitutes
safe practice. Under the OHS system, a breach of an approved Code is a prima
facie breach of the general duty. However, if a breach of the Code is proven, a
party may defend themselves on the basis that they had an equally good or
better system in place. The Code is, therefore, a supplement to the general duty,
and does not override it.
The question of what role OHS should have compared with the role of road
transport legislation in maintaining a safe trucking industry is hotly debated. Some
bodies consider that the police force and the Road Transport Authority (RTA)
are the lead agencies in this area (Quinlan 2001, p. 204). Additionally, the South
Australian Coroner (1999) has pointed out that the adoption of the OHS-based
regulatory systems by some States means that the drive for national consistency
in the regulation of the industry cannot be achieved. Furthermore, adoption of
an OHS-based system may be seen by some as self-regulation, leaving open the
potential for abuse. Conversely, Quinlan (2001, p. 208) noted that the Victorian
WorkCover Authority saw itself as having a strong role to play in the regulation
of road transport. Advantages of an OHS-based system over specific road
transport regulations include the fact that there is an established jurisprudence
that is clearly flexible to cover widely varying industrial situations, including
subcontractual relations. Additionally, OHS inspectorates are established, have
adequate evidence gathering powers, and are familiar with the nature and
quantity of evidence required to launch successful prosecutions. The police
are restricted in this regard when enforcing road transport regulations as, for
example, they have limited powers to examine logbooks and other documentation.
A comprehensive OHS regime would reduce the number of separate laws
that an organisation is subject to, and has the potential to reduce an area of
administrative overlap, thus increasing efficiency and possibly freeing up
resources for increased enforcement. Finally, the possible penalties under OHS
legislation are significantly higher than those in the Driving Hours Regulations,
so strategic OHS enforcement may have a more effective deterrent effect on the
industry than the same number of Driving Hours Regulations prosecutions. The
role of OHS codes in the management of fatigue in industry was considered by
the House of Representatives Standing Committee on Transport, Communication
and the Arts, Beyond the Midnight Oil: Managing Fatigue in Transport Report (2000)
(Midnight Oil Report) that recommended that a national fatigue management code
be developed as a priority (Recommendation 30). The Government responded
by stating that rather than one overall standard, it would create OHS codes
according to the specific situation of each transport modality (Response of the
Federal Government to the House of Representatives Standing Committee on
Transportation Communication and The Arts, Beyond the Midnight Oil: Managing
Fatigue in Transport [2001]). The specific instruments regulating the transport
modalities will now be addressed.

TRANSPORT

LEGISLATION

Separate legislation and administrative bodies are in place to regulate road, rail
and aviation transportation. State bodies administer road and rail transport, while
the federal government is responsible for aviation. There is some overlap in

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responsibility for road and rail, as both Commonwealth and State bodies address
road and rail safety planning. In particular, the National Road Transport Council
(NRTC) and the Australian Transport Safety Bureau (ATSB) have played a major
role in preparing, implementing and evaluating the new National Road Rule
(Fatigue Management) Regulations.
Road transport
In the road transport industry, fatigue has been traditionally managed indirectly
by prescriptive Regulated Hours Regime regulations monitored in logbooks. This
system sets out precise allowable driving hours before a break of a certain length
must be taken, and the maximum number of driving hours allowable in a day,
week or month. Recently, the eastern States and South Australia (but not the
ACT) have introduced regulations specifically addressing fatigue. In South
Australia, they are called the Road Traffic (Driving Hours) Regulations 1999, made
under authority of the Road Transport Act 1961 (SA). These regulations maintain
the option of compliance with traditional prescriptive hours of service rules, but
also introduce alternative compliance systems, called Fatigue Management
Schemes (FMS) and Transitional Fatigue Management Schemes (TFMS).
Additionally, the new Regulations introduce the notion of a ‘chain of responsibility’
that places duties on people in the road transport industry other than the
drivers.
The FMS alternative compliance model allows an accredited company to be
excused from the normal regulations, if they implement their own auditable
Fatigue Management Program (FMP). The FMP must cover areas identifying
all contributors to fatigue including, but not limited to, rostering, scheduling,
time on job, sleep hygiene and health of drivers. The main advantage of such an
approach is that each company can devise a system that suits its own conditions
and is not hampered by inflexible prescriptive regulations.
Queensland is the only state that is operating a pilot FMS. Quinlan (2001)
states that only a small number of operators have become formally accredited
and operational and that there have been administrative delays in extending
the system. However, Quinlan (2001, p. 256) also notes that there were many
positive responses to the pilot, and concluded that the FMS program ‘appears
to represent a positive trend which requires further assessment, and if confirmed,
methods for extending it and providing more effective regulatory support’.
The TFMS, also created by the new Regulations, is essentially a hybrid of prescriptive and non-prescriptive approaches, and allows an extension of allowable
driving time, but imposes additional requirements on the driver and company in
relation to provision of information about fatigue, the requirement for medical
examinations and requirements for extra record keeping. The TFMS was introduced primarily to make it legal to drive from Brisbane to Sydney in one shift.
A key feature of the new Regulations is the concept of a ‘chain of responsibility’.
Traditionally, Anglo-Australian law has developed looking only to redress the loss
caused to a person by the one who directly caused it, without looking to antecedent
causes. However, as it is not just the driver who receives the reward for the
transport task, it is not just the driver who has the responsibility to manage

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fatigue and should not solely bear the risk of defending fatigue-related incidents.
In reality, the burden extends to others who traditionally do not see themselves
as part of the equation, such as freight forwarders and clients. In a detailed investigation of the commercial practices in the industry, Quinlan (2001) (see also
Williamson et al. 2001; Coroner of South Australia 1999) details that pressure
for drivers to break driving hour and safety laws comes from multiple sources,
including unrealistic and inflexible schedules, low freight rates, intense competition and poor loading/unloading practices (including the lack of demurrage rates).
Addressing the problems ‘up the chain’ is a continuing problem, as a recent
survey by Feyer et al. (2001) indicates that while middle managers show an
increased awareness of fatigue compared to 5 years ago, they still do not recognise the significant contribution that freight loading and night work make to
fatigue, and therefore, to unsafe work practices. To address responsibility ‘up the
chain’, Part 5 (rr. 74–8) has been inserted into the Regulations that makes it an
offence to require a driver to commit an offence against the Regulations, including the provisions regarding fatigue (see Appendix 2). A body corporate may
be fined up to five times the amount otherwise specified (r. 129).
In addition to alternative compliance options and chain of responsibility
offences, the Regulations introduce a distinction between driving time and working
time. Working time includes all of the ancillary tasks to driving a vehicle, such
as loading/unloading, fuelling and maintenance. The addition of work time to a
fatigue management system is very important because driver fatigue is not
simply a product of hours behind the wheel.
From a scientific position, the Regulations have flaws because they fail to address
the impact that circadian factors have on fatigue.5 In addition, they suffer from
a lack of significant penalty upon breach, so that a driver who is paid by distance
travelled, or a transport company seeking to maximise gain, may conclude that
breaking the law is more profitable than complying with it. The NRTC (2002)
has released a draft review of the Regulations that address these defects. This draft
review is due to be considered by state transport ministers in 2003.
Rail
Unlike road transport, there are no instruments that deal directly with fatigue
in rail transport regulation. Nevertheless, all of the State regulatory bodies require
appropriate, annually updated and accredited safety plans. A safety management
plan must identify significant potential risks in the operation of the network.
There has been no authoritative declaration of what is a significant potential risk,
but given the potential catastrophic consequences of allowing fatigued drivers to
operate trains, fatigue management should be a component of any safety
management plan. Each of the state regulatory authorities have agreed to base
their accreditation of rail operators on the Australian Standard for Rail Safety
(AS 4292). Again however, this Standard does not deal directly with fatigue issues.
The Midnight Oil Report (2000) recommended that there be the inclusion of
specific requirements to manage fatigue in rail, as well as more detailed hours of
service provisions. In the Government’s Response to the Midnight Oil Report (2001),
it stated that this was actively being considered.

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Aviation
The Federal Government enacted the Civil Aviation Act 1988, administered by
the Civil Aviation Safety Authority (CASA) to regulate the aviation industry.
CASA established regulations detailing the industry’s responsibilities for flight
and duty times under the Civil Aviation Order Part 48 (CAO 48). These regulations are prescriptive, and lack the ability to cope with the widely differing nature
of aviation in Australia. Therefore, CASA has introduced eight industry-wide
exemptions to CAO 48 in the form of prescriptive regulations. That is, if an
operator falls within the scope of one of the standard exemptions, it can take
advantage of the different rules contained within that exemption. In addition,
CASA is able to issue individual exemptions to cover specific operators. To
qualify for a specific exemption, CASA requires that an operator provide an
auditable fatigue management system (Civil Aviation Safety Regulations,
Part 119). If this system is found to be inadequate, it can result in the specific
exemption not being granted. Therefore, operators have the choice of strictly
obeying the limitations in CAO 48, complying with one of the standard industry
exemptions or applying for an individual exemption. CASA has powers under
s. 28 of the Act to ‘take appropriate regulatory action’ for breaches of the
regulations. The Midnight Oil Report (2000) recommended, and CASA is
currently undertaking, a review of the CAO 48 system to address fatigue considerations. CASA has indicated that it is planning to implement a new regulatory
framework in 2003.

CRIMINAL

LAW

In addition to the major statutes that have specific application to fatigue management described above, the general criminal law must also be considered. The
present paper will turn to discuss the offence of causing death by dangerous
driving (also known as culpable driving), which is the main offence prosecuted
in relation to fatigued driving. As has been previously mentioned, the responsibility for fatigue management should not just lie with the individual driver. The
criminal law does possess the ability to address non-driver responsibility, as the
common law recognises that corporations can be held responsible as accessories
for criminal offences (Giorganni v R (1985) 58 ALR 641). In addition, Division
10, Part 2.5 of the Criminal Code (Criminal Code Act 1995 (Cth), Schedule 1)
provides that corporations may be found guilty of an offence if there is a
corporate culture that encourages or tolerates a situation that may lead to
the commission of an offence.
Death by dangerous driving
There is no offence that makes it illegal to drive while fatigued. If a driver falls
asleep at the wheel, causing death, the authorities must express their prosecution
in terms of ‘[causing] death by dangerous driving’ or a similar offence. In Jiminez
v The Queen ([1992] 173 CLR 572 at 579) the majority of the High Court
described the nature of culpable driving as:
. . . [having] some feature which is identified not as a want of care but which subjects
the public to some risk over and above that associated with the driving of a motor

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vehicle, including driving by persons who may, on occasion, drive with less than due
care and attention.

The majority pointed out that being asleep at the wheel does not of itself
constitute culpable driving as being asleep at the wheel is considered equivalent
to being unconscious and therefore any action is involuntary. The offence of
causing death by dangerous driving requires this voluntary element. However,
in Kroon v The Queen ([1990] 55 SASR 46), King CJ (approved in Jiminez) pointed
out:
Every act of falling asleep is preceded by a period during which the driver is driving
while awake and therefore, assuming the absence of involuntariness arising from other
causes, responsible for his actions. If a driver, who knows or ought to know that there
is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he
is plainly driving without due care and may be driving in a manner dangerous to
the public. . . . The cases must be rare in which a driver who falls asleep can be
exonerated of driving without due care at least, in the moments preceding sleep.

Therefore, the fact that a person was asleep does not of itself constitute dangerous driving. Rather, if the driver is aware that they are tired, and as a result of
this tiredness (i) the driver falls asleep and causes an accident, or (ii) the driver
performs another dangerous action, they will be guilty of dangerous driving. Some
examples of situations consistent with either falling asleep or tired driving reported
in the case law are: failing to keep a proper look-out (The Queen v Franks [1998]
VSCA 100), drifting onto the incorrect side of the road (R v Rowlson [1996] 67
SASR 96; Regina v Pellow, Supreme Court of NSW Court of Criminal Appeal,
Newman J, Levine J, Barr J, 1 August 1997, unreported), failing to stop at a stop
sign (Plenty v Bargain [1999] WASCA 67) and failure to negotiate a roundabout
at speed (The Queen v Rudebeck [1999] VSCA 155). Of course, it may not be
possible to determine whether a driver has fallen asleep in practice, but as
discussed, this is not necessary, as a conviction does not require proof of sleep.
Another inference that can be drawn from this principle is that a driver who
is aware of a condition that may lead to their driving becoming impaired
(e.g. epilepsy, narcolepsy, sleep apnoea) has the potential to be convicted of
an offence if the driver has an accident (McCutcheon 1997).

NEGLIGENCE
In addition to potential criminal responsibility, dangerous acts committed by an
excessively fatigued person may lead to civil liability in the tort of negligence.
Once again, the present paper will analyse the position in relation to driving motor
vehicles.
The law of negligence assumes that people who operate dangerous machinery,
such as a motor vehicle, owe a duty to others around them. In negligent driving
cases, individuals are judged against the standard of a hypothetical average
driver who is reasonably awake and alert. Courts do not allow an individual to
claim fatigue as a factor that lowers the standard by which they are judged. That
is, individuals cannot argue that special consideration should be given to them
because they were tired. Moreover, there have been decisions in Canada (Boomer

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v Penn [1965] 52 DLR [2d] 673) and New Zealand (Billy Higgs and Sons Ltd v
Baddeley [1950] NZLR 605, affirmed in Robinson v Glover [1952] NZLR 669 at
671) to the effect that an individual who is aware of a fatigue-related danger owes
a duty higher than the normal standard. Therefore, a driver who is fatigued
or who knows that they are likely to be fatigued will find it difficult to avoid a
negligence claim if they crash their vehicle and cause loss to another party.
Once again, the responsibility for a fatigue-related incident can be extended
beyond the principal agent. In the above situations, a plaintiff would likely be
advised to sue the driver’s employer under the principles of vicarious liability, as
a trucking company is usually better-placed to compensate for damage than an
individual. As long as the wrongful act of the employee could not be described
as occurring outside the employment relationship, the employer can be held
liable.

WORKERS’

COMPENSATION

In addition to the specific statutes addressing fatigue and the general law,
workers may need to consider the extent to which Workers Compensation
legislation provides protection for fatigued-related injuries. All Australian
jurisdictions have compulsory Workers’ Compensation schemes. In the context
of this article, the main question is if they cover a fatigued worker driving to
or from work, as injury sustained due to fatigue while at work is prima facie
compensable. Of particular relevance is the commute home after an extended
shift, because the probability of fatigue-related injury increases with time-onshift, with exponential increases in risk observed after 9–12 hours (Hanecke et al.
1998; Folkard 1997). In addition to hours on duty, time-of-day is an important
contributor to accident risk (Folkard 1997). As such, performance impairment
is especially noticeable for night-shift workers, as both time-on-task and circadian
factors may contribute to the impairment. It would also be expected that injuries
may occur on the commute to work, if the clock on time requires the worker to
drive at or before 6.00am, around the time of most people’s circadian nadir.
In the case of the tired worker who is involved in a car accident, after establishing whether the person is a worker for the purposes of the Act6, it must be established whether the injury ‘[arose] out of, or in the course of employment’. In
the context of journeys, there must be a ‘real and substantial connection between
the employment and the accident out of which the disability arises’ (Workers
Rehabilitation and Compensation Act 1986 [SA] ss. 30–1).
This statutory formulation does not exclude the possibility that a worker
may be fatigued due to long working hours and/or working at chronobiologically
inappropriate times (i.e. during circadian low points) that would constitute the
necessary substantial connection between employment and the incident. However,
the difficulty faced by the worker is proving this connection. In WorkCover
Corporation/Mercantile Mutual Insurance [SA] [Quality Staff Pty Ltd] v Andrew Paul
Davies ([1997] SAWCAT 91, affirmed in Davies v WRCC [1998] SASC 6757) the
tribunal held that the particular work pattern of the employee in that case would
cause substantial levels of fatigue. However, the plaintiff could not prove
that this caused the inattention that lead to the crash. According to the tribunal’s

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analysis, for a claim of this type to be successful, it would seem that there would
have to be direct proof that: (a) the worker was fatigued; (b) that the work environment was the sole cause of the fatigue; and (c) the cause of the crash can be
directly-related to inattention due to fatigue. In practice, this would be difficult
to show. However, other courts have not analysed the ‘substantial connection’
requirement in this way, instead looking at the whole arrangement between
employee and employer to infer proof of these elements. For example, the
fact that an employer makes special arrangements for transport to a remote
workplace has held to be sufficient (Mark Dry v Workcover Corporation (Bardrill
Corporation Ltd) [1996] SAWCAT 126).

SUMMARY

AND PROPOSALS FOR FURTHER REFORM

Fatigue is a serious issue that is receiving increasing attention from the
government, both at the state and federal level. Many of the initiatives in road
transport and aviation have already been discussed. These attempts are a
welcome sign, but are incomplete and require continued action. In particular,
the inclusion of circadian factors into the road transport regulations is a
priority. Although progress has been made with the specific regulations, there is
an overall lack of consideration of the interaction between the different areas
of the law, such as potential conflict between OHS law and specific transport
regulations.
This article proposes a starting point for a clearer and more consistent legal
approach to fatigue in the law. First, the conceptualisation of fatigue must be
addressed. It is argued that fatigue-related impairment can be thought of in terms
of a continuum. That is, fatigue is a cumulative process in which increasing
levels of fatigue lead to increasing levels of impairment. The level of fatigue is
also mediated by circadian factors as generally performance and alertness are
at their lowest between 2am and 6am (e.g. Colquhoun 1984; Krueger 1989;
Smith 1992).
In the Jiminez case, the reasoning adopted by the High Court was that it
was only in the few seconds before falling asleep that people are aware that they
cannot perform functions with due care, and it is only then that they could be
in a position to be held criminally liable. Due to the nature of the evidence before
it in the case, the High Court was not given the opportunity to recognise the
cumulative nature of fatigue, or the influence of time-of-day. This may have been
particularly relevant in the case because the defendant’s car ran off the road around
the time of the circadian nadir. What is most important to understand is that
the reference period for fatigue-related investigations should not only be the
minutes before an incident, but also the previous few days, or even weeks, even
though the actual dangerous driving situation for legal purposes only occurs in
the minutes beforehand. If a sleep/wake history can be established for this
extended timeframe, this evidence can contribute towards disproving any
argument based on reasonable mistake of fact (for a criminal charge) or what
could be considered reasonable in the circumstances (for a negligence case).
However, the common law can have the flexibility to recognise the continuum
nature and the impact of fatigue as occurred in Dredge v The State of South Australia

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([1994] 62 SASR 374) in which Bollen J found the police force liable in
negligence for the injuries suffered by one of its officers when that officer’s
superior sent him out on patrol knowing that the officer had insufficient sleep
during the previous two days. The officer subsequently fell asleep at the wheel
and crashed his patrol vehicle, injuring himself.
With the conceptualisation of fatigue in mind, a logical framework for penalties can also be established. Two possibilities will be presented here. First, expert
evidence on the level of fatigue could be adduced at trial and this information
taken into account by the sentencing judge. This is, of course, is not really a
reform, as the procedure already exists within the framework of the trial process.
However, there may be some benefit in a superior court laying down some guidelines about the appropriate impact that a particular level of fatigue will have on
a sentence so that there will be consistency in the treatment of fatigue and explicit
recognition of it. The second possibility is that legislation could be established,
prescribing a certain punishment when a particular level of fatigue is detected.
Such a system could operate in a very similar fashion to the alcohol impairment
legislation already in place (the analogy to alcohol impairment will be discussed
in more detail below). These benchmark levels could then be used in other situations, formally or informally, for example, in the workplace to determine
fitness for work or to predict the fatigue-related impact of a roster for safety.
This may prove to be the most fertile application of a continuum of fatigue
paradigm by the law, due to the potential for it to be applied in all industries,
not just transportation.
A further area for reform exists in criminal law. It is proposed that driving
while fatigued be established as a new offence. As scientific research has showed
quantitative and qualitative similarities between performance impairment
resulting from fatigue and alcohol intoxication (Dawson and Reid 1997; Lamond
and Dawson 1999) and the community already has an understanding and
acceptance of drink-driving laws, this proposal will use the alcohol model as a
template for fatigue. However, the reader is cautioned that alcohol impairment
is not a perfect analogy for fatigued impairment, and care should be taken when
applying the alcohol model to the fatigue proposal.
There are many possible models for the creation of a fatigued driving offence;
three will be considered here:
1. a general prohibition of dangerous driving while impaired due to fatigue;
2. defining driving while fatigued as constituting a prima facie breach of an
existing crime (e.g. that driving while fatigued can be considered reckless7); or
3. an offence making it illegal to drive when fatigued over a certain level.
Options one and two have advantages in that they are simple, and in the case of
option two, can be incorporated into existing bodies of law. However, they are
vague and both options lack a definition of how much fatigue a driver must have
before they cross the line into prohibited conduct. However, this is not a fatal
flaw, as these questions would be answered in time by the development of the
case law. This development process could be aided by utilising the continuum
understanding of fatigue presented above. That is, that there are different
levels of fatigue, some worthy of punishment and once passing a threshold of

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culpability, punishment should increase as the level of fatigue increases. In
this respect, option two also has the benefit of being able to draw on existing
notions of recklessness.
Option three has the closest correlation to the alcohol impairment model
currently in place. As with alcohol, a bright line level of impairment would be
created, beyond which driving while fatigued would be illegal due to the risks
posed to other road users. The bright line would be set by establishing a
performance impairment level that is considered to be dangerous to operate a
vehicle (perhaps equivalent to a blood alcohol concentration [BAC] of 0.05%).
This option has the advantage of being both simple to understand and precise,
as well as being in a form with which the general public is already familiar.
The idea of making fatigued driving an offence is not new. In fact, it was a
major recommendation (number 34) of the Midnight Oil Report (2000).
However, the government rejected the recommendation due to the lack of
objective fatigue management devices to clearly define and police the proposed
offence (Reply to the Midnight Oil Report, Commonwealth Government 2001).
In other words, there is no ‘breathalyser’ for fatigue. However, as research
continues into measurement techniques and instruments, this concern may be
addressed. For example, Williamson et al. (2000) have reported development
of a relatively easily administered test for fatigue that is calibrated to the
performance impairment equivalent of a BAC of 0.05%.
While it is acknowledged that establishing levels and measurement tools
for fatigue is complex and requires much further investigation, it is important to
keep in mind that any system developed does not have to be perfect. Rather, a
successful system needs to have a high level of validity, reliability, sensitivity and
specificity from a scientific perspective, and be easy to administer by enforcement
agencies (Dinges and Mallis 1998). It is worth mentioning that the alcohol model
is not perfect either, as interindividual differences exist rendering the choice of
model and impairment level somewhat arbitrary and imperfect. However, we have
had success pursuing this model of alcohol intoxicated driving regulation and we
should aim for the same with fatigue.
To conclude, the different areas of law treat fatigue in neither a consistent nor
coherent manner. Armed with recent scientific understanding of fatigue, we can
begin to formulate a better conception of fatigue and use this to inform the laws
that seek to regulate situations in which fatigue impacts human endeavour. We
should not be afraid to use the knowledge gained in the last decade about fatigue
to improve safety and efficiency in the workplace and on the road.

ENDNOTES
1. This legislation covers most industries in which fatigue may be of concern but not all.
2. Section 19(1) “An employer shall, in respect of each employee employed or engaged by the
employer, ensure so far as reasonably practicable that the employee is, while at work, safe from
injury and risks to health.”
3. For a discussion of what amounts to an employee at common law, see Stevens and Gray v Brodribb
Sawmilling Co Ltd (1986) 160 CLR 16 at 25 per Mason J.
4. See also TTS Pty Ltd v Griffiths (1991) 105 FLR 255 at 272 per Asche CJ.
5. See also Midnight Oil Report (2000), Recommendation 2.

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6. An employee is defined less broadly than in the OHS legislation discussed above. Contractors,
outworkers and those who do not fall into the traditional employment relationship are not
covered. This forms a significant limitation to the scope of the legislation in the modern
Australian employment climate.
7. This option has been proposed in the State of New Jersey in the United States of America
where a Bill has been presented to the State legislature. See ‘Maggie’s Law’, New Jersey
Legislature Bill A1347, Senate Bill S1644.

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