The WA Supreme Court, Court of Appeal recently found against the appellant worker, Ms Fraser, in Fraser -v- Burswood Resort (Management) Ltd  WASCA 130.
At 4.00am on 10 December 2001, Ms Fraser finished her eight hour shift as a croupier at Burswood Casino, changed out of her uniform and started driving to her home. Half an hour later she inadvertently drove on to the gravel verge and in an effort to gain control of her vehicle caused it to roll four or five times. Ms Fraser was seriously injured and suffers from continuing disabilities.
Ms Fraser claimed damages from Burswood claiming 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.
In essence, these breached were the failure of Burswood:
- to warn Ms Fraser about, or mitigate the effects of the circadian cycle upon workers required to work night-shifts; and
- to not adjust her shift so that they did not finish in the pre-dawn hours, which were said to be between 2.00 am and 6.00 am.
Prior to trial, the parties 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, so only liability was in dispute at trial.
The trial judge found that Burswood had a duty to warn Ms Fraser of the identified risk, alter Ms Fraser’s night-shift roster and offer Ms Fraser a place and the opportunity to rest until day break, however, he dismissed her claim for damages on two grounds .
Firstly, Ms Fraser had not established that the accident was caused by her falling asleep at the wheel. He commented that it was merely supposition or conjecture on her part that she must have fallen asleep and the evidence in this regard was less than certain.
Secondly, he 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.
During the trial, Ms Fraser relied heavily on the evidence of Dr Hartley, but the trial judge was not persuaded by the majority of his evidence.
Ms Fraser appealed against those findings arguing that the trial judge failed to draw inferences that should have been drawn from the facts. The appeal covered 6 grounds and was heard by the Court of Appeal.
Grounds 1 and 2 related to the trial judge erring by finding that Ms Fraser had not momentarily fallen asleep or undergone a micro-sleep immediately before her motor vehicle left the roadway.
The Full Court noted with some significance that in her first description of the accident in her evidence, Ms Fraser made no reference to falling asleep. Her Counsel accepted that she was expressing a conclusion rather than a recollection. They found that a 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. Grounds 1 and 2 were therefore dismissed.
Grounds 3 to 6 related to the trial judge’s failure to find that:
- Burswood’s breach of the duty to warn as to the effects of the circadian cycle caused the accident;
- Ms Fraser would not have delayed her journey home from work if aware of the risk; and
- Burswood was under a duty to arrange Ms Fraser’s shifts so that they ended at or after sunrise, or at or after 6.00 am.
As, Ms Fraser could not establish that she fell asleep prior to her vehicle leaving the roadway under grounds 1 and 2, her appeal must fail and it was not necessary to deal with the other grounds. Nonetheless each ground was dismissed.
Burswood raised four grounds of cross appeal which all challenged 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. As the appeal was dismissed, it was unnecessary to resolve the issues raised, but for the sake of completeness, each cross appeal should also have been dismissed.
This case highlights that even if an employer breaches its duty, unless that breach directly results in loss, there is unlikely to be damages awarded.
For more information on this update or any other workers’ compensation matters please contact Ken Grunder on (08) 9321 3755.
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