Hoey v Martin's Stock Haulage (Scone) Pty Ltd [2003] ACTSC 41 (23 May 2003)

Last Updated: 30 May 2003

GREGORY HOEY v MARTIN'S STOCK HAULAGE (SCONE) PTY LTD

[2003] ACTSC 41 (23 May 2003)

PERSONAL INJURIES - Workplace accident - driver required to drive excessive hours - truck crashes due to driver falling asleep - unsafe system of work.

DAMAGES - Assessment under Workers Compensation Act 1987 (NSW) - no issue of principle.

Motor Traffic Amendment (Driving Hours) Regulation 1998 (NSW), regs 39, 77

Workers Compensation Act 1987 (NSW), s 151G

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

State of New South Wales v Coffey [2002] NSWCA 361

Sungravure Proprietary Limited v Meani [1964] HCA 16; (1964) 110 CLR 24

John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

No SC 391 of 2001

Judge: Connolly J

Supreme Court of the ACT

Date: 23 May 2003

IN THE SUPREME COURT OF THE )

) No SC 391 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GREGORY HOEY

Plaintiff

AND: MARTIN'S STOCK HAULAGE

(SCONE) PTY LTD

ACN 050 210 985

Defendant

ORDER

Judge: Connolly J

Date: 23 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $389,411.00 with costs.

1. This is a claim for damages for personal injuries sustained by the plaintiff on 25 March 1999 whilst he was employed by the defendant as a semi-trailer driver. The plaintiff was severely injured when his semi-trailer left the road and rolled into a ditch near Rosewood in New South Wales in the early hours of the morning, at a time estimated to have been near 3:20 am. The motor vehicle accident was a single vehicle accident, and the evidence satisfies me that the accident occurred because the plaintiff fell asleep while at the wheel, and his semi-trailer failed to negotiate a slight bend in the road.

2. This is consistent with the report tendered in the plaintiff's case by an expert traffic engineer, Mr J Jamieson, principal in the firm Jamieson Foley Consulting Forensic Engineers. In this report, part of exhibit B, Mr Jamieson concludes:

The approach to this night crash involved an initial sweeping right curve (approximately 350 to 400 metre radius) followed by a 150 metre straight, then a left curve of similar radius to the first.

About half way through this second curve Mr Hoey's vehicle drifted to the right, impacted the end of a steel guardrail, before rolling over into the area of Doughtys Creek, just outside Rosewood.

.....

The crash investigation suggested there was no indication of excessive speed and the sole reason the vehicle left the road to its right, was due to the driver "drifting of", presumably through exhaustion.

3. Ordinarily an accident which occurs in these circumstances might not be thought to give rise to a claim in damages, in that the accident could be said to have occurred solely due to the fault of the plaintiff in falling asleep at the wheel. The plaintiff brings this claim alleging that his employer required him, in the period of 72 hours before the accident, to drive excessive distances and to work for excessive hours, and that, while the accident occurred as a consequence of him falling asleep at the wheel, the reason he fell asleep at the wheel was because he was required to drive well in excess of safe hours and distances. In this sense, the case is pleaded as an unsafe system of work type of case.

4. That the plaintiff sustained very significant injuries in the accident was not in issue between the parties, and indeed it is apparent that he was fortunate to survive the accident. He was trapped for some five hours in the wreckage of the truck. Among the evidence tendered relating to the circumstances of the accident were some press clippings which tell something of the efforts of the local road rescue, police and paramedics in removing the plaintiff from the very badly crushed cabin of his semi-trailer, and stabilising him until he could be brought to the Canberra Hospital by helicopter.

5. The plaintiff was born in Cootamundra, New South Wales, in August 1963, and attended local schools until 1979 when he obtained his school certificate. He worked as a station-hand in Queensland for a period, and then returned to the Cootamundra district in late 1980, working as a station-hand until he obtained employment as an offsider on a trucking run. He then found work with an earthmoving contractor, and in 1982 obtained a heavy vehicle licence. He went into business for himself for a period in the mid-1980's as an owner-driver, but his truck broke down in about 1985 and he then found work in the mines in Cobar. In the late 1980's he returned to truck driving, working with a company that specialised in livestock transport. In about 1990 he learned to shear, and through the early and mid-1990's he alternated between shearing work and truck driving, including working for a period driving garbage trucks in Canberra. From about 1997 he returned to driving livestock trucks, at first for a company called Lewington's Transport Pty Ltd and then in January 1999 he joined the defendant as a driver. He says that he made the move because they paid an extra six cents per kilometre for driving, and they also paid him while he was loading and unloading the semi-trailer with stock. He lived in Cootamundra, and garaged the defendant's vehicle there when at home. He says that he kept in contact with his employer by truck phone, and would be allocated tasks by his supervisors.

6. The plaintiff's case is that in the period of about 88.3 hours between 11 am on Sunday, 21 March 1999 and the accident, which is taken to have occurred at 3.20 am on Thursday, 25 March 1999 the plaintiff was driving for about 49.5 hours, was engaged in other work such as loading and unloading stock for about 15 hours, and had a total period of leisure and sleep of 24 hours. This period is said to be broken up into about eight hours for breaks and meals, and 14 hours of sleep, which was mostly obtained in the bunk of the truck. During this period, the plaintiff estimates that he drove a heavy vehicle, either a standard semi-trailer or a B Double, for about 3,671 kms.

7. The plaintiff tendered a schedule, which became exhibit A, which sets out the above estimates of his work in the days before the accident. He also marked a road map with the route of his travels, and this became exhibit E.

8. The plaintiff says that on Sunday, 21 March 1999 his first job was to load cattle from a feedlot at Jindalee, near Cootamundra, and take them to a property at Rockdale via Narrandera. He commenced his counting of time and distance from the point at which he arrived at the feedlot and commenced loading (11 am). He says that he arrived at his destination, a distance of about 188 km, at about 2:30 pm, and that it took him about one hour to unload the stock. He then had to drive to Cootamundra, a distance of about 221 kms, and arrived there at about 6 pm, and had a meal with his father. He says that he then received a phone call from his supervisor at about 8:30 pm to drive to Rockley, near Bathurst, to load sheep at about 6:30 am on Monday morning and to take them to Coolah. He says that he left Cootamundra at about 9:30 pm and drove to Rockley, arriving some time after midnight, a distance of 265 kms. He then had a sleep in the cabin of his truck until about 6 am. He commenced loading the sheep at about 6:30 am, a process which took about 3.5 hours, and left at about 10 am to drive to Coolah, a distance of 324 km. He arrived there at about 3 pm, and unloaded the sheep before leaving at 4 pm and driving about 108 kms to a feedlot near Quirindi. He had received instructions to there load cattle to be taken to a facility known as "Beef City" at Cecil Plains near Toowoomba in Queensland. He says it took about two hours to load his B Double rig with the cattle, and he left for Cecil Plains at about 7 pm on Monday evening. He drove through the night, being observed by the Safety Camera at Boggabilla, and arrived at Cecil Plains at about 4:30 am, after driving a distance of some 642 kms. He says that he only had a short break during this trip at the Goondiwindi Roadhouse, which is at the border.

9. He says that after unloading the cattle he left Cecil Plains at about 7:30 am and drove unloaded to Goondiwindi, where he had a meal and fuelled the truck. This was a distance of about 201 kms, and took about 2.5 hours. He says that after fuelling the truck he had a meal, a shower and a rest for about 20 minutes. At about midday he left for a property near Wee Waa where he was to load more cattle. This trip was about 294 kms, and took 3.5 hours. He loaded the cattle and left at about 4 pm for another property near Weemelah, which is near the Queensland border north of Moree, a distance of about 259 kms, which took 3.5 hours.

10. He says that he arrived there at about 7 pm on Monday, and unloaded the stock. He left Weemelah at about 8 pm and drove, unloaded, to Narrabri, a distance of about 194 kms which took about three hours. He says he had a meal and a break at Narrabri for about a half an hour, but that he received further instructions over the telephone to drive to Gunnedah to load cattle on Tuesday morning. He says that he left Narrabri, and arrived at Gunnedah, a distance of about 98 kms, around midnight. He says that he was feeling "buggered" by this time, but that he phoned the Scone office on his arrival and told them that he would have some sleep and load up the following morning. He says that he was able to get about 5½ hours sleep in the bunk of his truck before loading cattle from about 5:30 am on Tuesday morning. He says that the loading took until about 7:30 am, and he then took the load to Wagga Wagga, via Dubbo.

11. He says that there were some mechanical problems because he blew an airbag on the trailer, and he reported this problem via the truck telephone, and was instructed to go to Dubbo and have the problem attended to. He says this slowed him down, and he arrived at Dubbo at about midday, a distance of 266 kms covered in 4.5 hours of driving. He says that the B Double rig was still together and loaded with stock while the repairs were effected, and he tried to get some sleep in the bunk, but that this was difficult with the noise of the mechanics working on the truck and the stock in the trailers. He says that he was able to doze, and left at about 2:30 pm, arriving at Wagga Wagga at around 9 pm, a distance of 418 kms covered in about six hours of driving.

12. He says that, before he arrived at the unloading point at Wagga Wagga, he received a phone call from Mr Andrew Peadon, his supervisor, telling him to hurry up because he had another job to do which involved picking up live deer at a property at Tooma, near Tumbarumba. He says that he was told that the deer needed to be loaded in the dark, and that he had to be at the property by about 3:40 on Wednesday morning.

13. The plaintiff says that he was very tired by that stage, and told Mr Peadon that he could not do the job because he was "buggered". He says that he was told "Either you do the job or get your gear out of the truck. If you can't handle the job, get out". He says that he agreed to do the job.

14. He says that he then washed out the trailers from about 9.30 pm to 10.30 pm, and then had a break for about half an hour for coffee and a sandwich, before driving off to the next job. He says that there was a diversion at around Tarcutta, where he had to meet another of the defendant's drivers and split his rig and move one of the trailers from that B Double, which involved some additional time. He estimates that he drove about 113 kms doing this, and then had a break for coffee for about half an hour at about 2 am with the other driver. He then left Tarcutta at about 2:30 am, and the accident occurred at around 3:20 am, at a distance of some 80 kms from Tarcutta.

15. On the plaintiff's recollection from his evidence and the schedule of driving in exhibit A, he travelled some 3,671 kms and was driving, mostly a B Double for some 49.5 hours in this period, as well as working on loading and unloading, and washing out the rig, for some 15 hours. In this approximately 88.3 hour period, he only had some 24 hours when he was not working, and he estimates that he was only able to try to sleep or doze for 14 hours. Sleep, when it was available, was on the bunk in his truck, and for some of this period, such as the daytime break when the truck was being repaired at Dubbo, he says that his sleep was disturbed.

16. The plaintiff's evidence as to hours worked and distances covered was not challenged in cross-examination. The only real issue in cross-examination was the plaintiff's version of his final instructions, and his claim that he was, in effect, told to do the job as instructed, or to "get his gear out of the truck", which he took as a threat that he would lose his job if he did not comply with the instructions.

17. Mr Peadon, who had been operations manager for the defendant, gave evidence that he recalled having a conversation by telephone with the plaintiff on the morning of 24 March 1999, and he says that all he can recall is that the plaintiff was then near Coonabarabran. This is consistent with the route that the plaintiff says he took that day. Mr Peadon said that he did not recall whether he asked the plaintiff to perform any other jobs. In cross-examination he denied that he told the plaintiff to perform the last job or that he could lose his job, but he acknowledged that he did not have a clear recollection of the conversation.

18. It seems to me that the plaintiff must have been told by someone to undertake the final job, and that as Mr Peadon was the operations manager at Wagga Wagga, that instruction must have come from him, although I accept his evidence that he does not recall giving the instruction. No evidence was produced by the defendant by way of despatch records or otherwise that would show someone else gave the instruction. I accept the plaintiff's evidence that Mr Peadon told him to go and load the deer, and that this occurred after he had reached Wagga Wagga on the evening of 24 March 1999. Mr Peadon's only recollection was that he had had a conversation that morning with the plaintiff when he was near Coonabarabran, on the way to Wagga Wagga. The plaintiff gave evidence of this conversation when he said that he had advised Mr Peadon of the problem with the truck, and was told to go to Dubbo to effect repairs, which he did. I find that there was another conversation later that day, when he was told by Mr Peadon to do another job. The plaintiff says that he protested, and but was told to do the job. Mr Peadon denies this, but acknowledges that he has no clear recall of the conversation. On the evidence before me, I am satisfied that the conversation occurred as the plaintiff described it. On this finding, it seems to me that the plaintiff establishes liability.

19. I am satisfied that the hours of driving and other work performed by the plaintiff at the instruction of his employer in the period from late Sunday morning was excessive, and that the hours he was instructed to work exposed him to a clearly foreseeable risk of a fatigue-related driving accident.

20. This conclusion, it seems to me, could be reached on the lay evidence as a matter of common sense, but the plaintiff did tender a report from Associate Professor Ron Grunstein of the sleep disorders centre at Royal Prince Alfred Hospital in Sydney. In addition to his basic medical qualifications Professor Grunstein holds a PhD and MD by research thesis, and is a Fellow of the Royal Australasian College of Physicians. His area of expertise, includes the effect of shiftwork and sleep disorders on health, and sleep-related accidents. Professor Grunstein is clearly an eminent expert, and his qualifications, appropriately, were not challenged.

21. It is appropriate to set out Professor Grunstein's report in some detail. He set out the general principles of sleep deprivation as follows in section 1 of his report:

OPINION ON THE EFFECTS OF SLEEP DEPRIVATION AND/OR DRIVER FATIGUE ON A PERSON

1. There is no widely accepted definition of fatigue, but working definitions in the transport context typically refer to a combination of:

a. impaired performance (loss of attentiveness, slower reaction times, impaired judgement, poorer performance on skilled control tasks and increased probability of falling asleep) and subjective feelings of drowsiness or tiredness;

b. long periods awake, inadequate amount or quality of sleep over an extended period, sustained mental or physical effort, disruption of circadian rhythms (the normal cycles of daytime activity and night sleep), inadequate rest breaks and environmental stresses (such as heat, noise and vibration).

2. The early effects of fatigue on driving reflect a tendency of the driver to decrease attention to safety-related tasks and to drive gazing vacantly at one specified point. During this stage vehicle speed is fairly constant but there are often delays in changing speed in response to change in gradients of the road. Studies have shown that drivers may attempt to compensate for slower reactions and impaired visual scanning by slowing down or being less willing to overtake.

3. When the driver is more fatigued, the driver has little awareness of his/her behaviour and steering responses are slower. The driver tends to zigzag within the lane, sometimes crossing the centre line or running off the side of the road. Falling asleep at the wheel may occur.

4. Driver fatigue results in an identifiable pattern of deterioration in driver performance. Depending on environmental factors such as the width of the roadway and the presence or absence of other vehicles, the deterioration in driver performance may or may not result in a crash. In the case of driving in remote areas where the distance travelled and the monotony of the task may increase the probability of a fatigue related incident.

5. As mentioned above, one of the major causes of driver fatigue is inadequate sleep (sleep deprivation). Sleep deprivation may be acute, as in the case of someone not sleeping the whole night and continuing to stay awake the following day. In other cases, it may be chronic, due to consistent reduction in sleep hours each night or most nights leading to sleep restriction or partial sleep deprivation. Even this partial sleep deprivation (6 or less hours bed time per night) is associated with a decrement in performance with a reduction in vigilance, reaction time and complex executive function compared with sleeping normal hours (8 hors bed time per night).

6. Truck drivers are frequently exposed to a combination of acute sleep deprivation (driving overnight and continuing the next day) and partial chronic sleep deprivation. This is frequently an occupational reality in the Australian transport industry.

22. It is apparent that Professor Grunstein, in providing his report, had been furnished with an earlier version of the schedule of driving and other work which became exhibit A before me, and which I accept as representing the true state of the hours worked. Professor Grunstein's version differed slightly, in that it assumed 52.3 hours of driving time in the period, whereas exhibit A refers to 49.5 hours, and 24 hours of leisure (including meals, coffee breaks and sleep time). He was provided with a faxed copy of the schedule as it appeared in exhibit A, and an e-mail response dated 12 April 2003 states that "The scenario change does not alter my report".

23. In section 2 of his report, Professor Grunstein was asked for his opinion as to how sleep deprivation would have affected the plaintiff taking into account his itinerary. He said:

Assuming the sequent of events and reports by Mr Hoey are correct, then he was clearly suffering from a combination of acute and chronic sleep deprivation at the time of the accident. This form of sleep deprivation would have caused all effects listed in section 1 above considering the general effects of sleep deprivation and driver fatigue in a person. In addition, Mr Hoey was driving in the middle of the night in a severely sleep deprived state which would have been an added risk compared with the already substantial risk of driving in a sleep deprived state at a circadian time of wakefulness i.e during daylight.

24. I am satisfied that telling the plaintiff to drive despite his protestations, which I find to be the facts, amounted to a breach of the employer's duty of care in failing to provide a safe system of work. That is to say, on the finding that there was a positive act by the employer to require a driver to drive excessive hours despite a protest from the driver, I am satisfied that there has been a breach of a duty of care. It seems to me, however, that it is necessary for me to go further, and to consider the position if, as is asserted by the defendant, the plaintiff had been instructed to undertake the final job (which it is conceded he had been), but had not told Mr Peadon that he was tired, and Mr Peadon had not threatened him with loss of employment if he did not undertake the job. That is to say, I should consider whether there was a breach of a duty of care in the absence of a positive instruction to drive despite being tired.

25. The defendant's case is that there was no positive instruction to drive in the face of a protest from the plaintiff that he was tired. It acknowledges that the plaintiff was told to do the final job, but says that as a professional driver, it expected the plaintiff to be aware of safety issues, and that if he considered himself to be tired, it would expect him to take a break. In the context of an instruction to be at a place to load livestock before dawn, this would, it seems, extend to expecting him to refuse to perform the job.

26. It seems to me that this is close to saying that an employer can fulfil its well understood duty of care in relation to the provision of a safe system of work if it leaves it to an employee to exercise appropriate judgment in relation to safety measures. So stated, the proposition is clearly untenable. An employer cannot employ persons skilled in a dangerous task, and then say that safety equipment is over there, and we leave it to you as to whether you use safety equipment or not. As the High Court said in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 313

The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6^th ed (1983) pp 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

27. In the present case, I am satisfied that the plaintiff has shown that the employer defendant has failed to meet this obligation, even if I were to find that there was no positive instruction to drive when tired. The evidence is that the employer left the decision as to when a driver was tired to the driver. Mr Peadon agreed that when the operations office contacted a driver to allocate a job, it was entirely up to the driver to make his own assessment as to whether he was capable of doing the job (T 99), because they were "professional drivers" (T 98). He agreed that he had never enquired of drivers how many kilometres and hours they had worked at the time of allocating a job (T 99). Moreover, his evidence was that the employer did not seem to know, at least at an operational level, what hours drivers were in fact working.

28. Mr Peadon gave evidence that at the time of the accident the defendant had two operational despatch centres, one at Wagga Wagga and one at Scone. The plaintiff was first despatched north on the Sunday from the Wagga Wagga office, but his subsequent instructions, until the Wednesday evening when he was given his last job, came from the Scone office. Mr Peadon said that the Wagga Wagga office might not have known what work he had been doing. He said (T 97):

I knew he went - we loaded him from Jindalee to Rockdale, and from there he went north to do work and we lost track of him until I found out he loaded at Gunnedah to come to Wagga. And he was worked in that period by the Scone office.

29. He further acknowledged that he made no enquires from the plaintiff when he got in touch with him about how many hours he had been on the road (T 97).

30. It seems to me that this is clearly an unsatisfactory system of work, in that the employer has failed to take any measures to ensure that the worker is maintaining a safe system of work, by only working safe hours. By despatching jobs to drivers with no knowledge as to the hours that the driver had been working, the employer, it seems to me, has clearly breached its common law duty of care by leaving the decision as to hours worked and whether a driver is fatigued to the driver. Leaving a safety measure to the will of the employee is clearly insufficient as Meagher JA noted in State of New South Wales v Coffey [2002] NSWCA 361 at [13]:

... there is High Court authority that merely to provide a service to be availed of at the will of the worker does not absolve one from performing one's duty of care to take reasonable steps to ensure that a safe system of work is in place: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301.

31. That was the case where a worker was injured in performing a lifting task in a factory where a mechanical hoist was available for use by the worker, at his discretion, to assist in the lifting, but the company's procedures did not require him to use it. The High Court upheld the view of the New South Wales Court of Appeal that it was insufficient merely to provide safety equipment for use at the discretion of the worker. In Bankstown Foundry Pty Ltd v Braistina, Mason Wilson, and Dawson JJ said at 310:

On no view could the present case be said to break new ground. The task was a heavy one.....In prescribing a method which obliged him to manhandle each pipe in a manner which involved him at times in a lifting and twisting movement there was plainly a foreseeable risk of injury. It may be that the risk was only a slight one but it was certainly more than fanciful or far-fetched. The fact that finally establishes the liability of the appellant is the ready availability of the hoist, providing an alternative means of handling the pipes which would have eliminated any risk whatsoever. There was no undue expense or difficulty occasioned to the appellant in prescribing its use. Once it is accepted that such use would eliminate the risk of injury, it necessarily follows that a prudent employer exercising reasonable care would require that it be used, at least for those parts of the process where otherwise it would be necessary to engage in a full lift of a pipe.

32. Mr Peadon's evidence was that the company at the time of the accident had about 50 drivers, and that if a driver said that he was too tired to perform any task, there would have been no difficulty in allocating the job to another driver. It seems to me that a prudent employer exercising reasonable care would require that alternatives be used when the employer knew that a driver had worked excessive hours, and that leaving this decision to the worker was entirely inappropriate.

33. I should add that this follows from the well established principles referred to above. Mr Cranitch, for the plaintiff, advised the Court that he had been unable to find any previous decision where a transport operator had been held liable for failing to ensure that a driver did not work excessive hours. That a particular set of facts has not previously been before a court should be no reason not to apply well settled principles to the facts as they emerge, and it seems to me that a system that permits, if indeed it does not require or encourage, excessive working hours, should result in liability on the employer.

34. I make this finding on the general common law principles referred to above, but I note that at the time of the accident there was also a clear statutory obligation, on the employer, to ensure that employed drivers worked safe hours (Motor Traffic Amendment (Driving Hours) Regulation 1998 (NSW)). Mr Peadon acknowledged in cross-examination that he had never looked at these regulations (T 94). This would also go to establish a breach of a duty of care.

35. These regulations impose obligations on drivers and employers of drivers in relation to maximum hours that may be worked. Relevantly, they require that in any given 24 hour period, a driver must not drive and work for more than a total of 14 hours, with a maximum of 12 hours driving, and must have a continuous rest period of not less than 10 hours, of which there must be one continuous period of six hours. This requirement had clearly not been complied with in any of the 24 hour periods leading up to this accident from the time the plaintiff first left on the Sunday morning.

36. The regulations clearly impose obligations upon the employers of heavy transport vehicles. Regulation 39 provides that the obligations of employer participants require the employer to manage employed heavy truck drivers, including their driving, work and rest times, so that they are able to comply with this Part.

37. This obligation was clearly not complied with by the defendant. The regulations go further and create an offence under reg 77 which provides:

77 Special obligation of employers

An employer must not allow an employed driver to drive a heavy truck or commercial bus for the employer if the employer knows, or reasonably ought to know, that by driving the vehicle the driver would, or would be likely to, commit a core driving hours offence.

38. Driving excessive hours can be a core driving offence. It seems to me that the employer here should have known the hours it was requiring its employees to drive, and should have known that they were excessive.

39. The evidence in this case revealed a state of affairs which, if widespread in the long distance heavy trucking industry, should be of real concern to the community. In recent years the attention of governments has focussed on the question of safe hours for long distance drivers, and regulations such as the Motor Traffic Amendment (Driving Hours) Regulation 1998 (NSW) are in place throughout Australia. That an operator's manager would acknowledge in cross-examination that he is unaware of the obligations this casts on operators to regulate and monitor the hours worked by drivers is of concern. Of more concern was the acknowledgement by the plaintiff that the logbook that he was required to maintain for the purpose of demonstrating to regulatory officials that he had worked safe hours was untrue. In effect, it seems that a logbook is maintained which shows an untrue set of hours, and another record is maintained, which shows the real hours worked, for the purpose of demonstrating the driver's entitlement to wages. There is a very legitimate public concern in ensuring that safe driving practices are maintained for the heavy transport industry, and regulatory officials may need to review their existing mechanisms for enforcement.

40. It is the fact in this case that the plaintiff was prosecuted and convicted for negligent driving as a consequence of this accident, and the breach report prepared by the NSW Police Service, which was part of exhibit B, shows that the basis of the charge was the excessive hours worked by him leading to fatigue.

41. I am satisfied that the defendant has breached the duty of care in failing to provide a safe system of work and in failing to adequately supervise the plaintiff in relation to driving hours. I make this finding on the basis that I am satisfied that he was told to drive on the last occasion despite his protest, but I would make the same finding even if I was not satisfied, on the balance of probabilities, that the conversation between the plaintiff and Mr Peadon occurred in the manner described by the plaintiff. The evidence of the plaintiff and Mr Peadon satisfies me that the defendant employer made no effort to regulate or control the hours worked by the plaintiff, and indeed did not know what hours he was working. This is sufficient to establish a breach of duty. The attitude of the defendant, that it left it up to the driver to regulate his own hours, is entirely inappropriate, and is clearly in breach of relevant regulations which cast a positive duty on an employer to regulate hours.

42. In all the circumstances of this case I am not satisfied that contributory negligence is made out. It is well recognised that "in considering whether there was contributory negligence in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact" (per Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman at 315). The test to be applied is that set down by Windeyer J in Sungravure Proprietary Limited v Meani [1964] HCA 16; (1964) 110 CLR 24 where His Honour said at 37:

When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing circumstances. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man.

43. In this case I have found that the plaintiff was told to undertake this final journey despite telling his employer that he was fatigued. In these circumstances, I do not find that his agreeing to do the job in circumstances where he feared that he would otherwise lose his job amounts to contributory negligence. On the alternative finding that was urged upon me by the defendant, that is where he did not dispute his final assignment, I would nevertheless find that he was not negligent in performing the task he was directed to do. To find contributory negligence here would in effect sustain the defendant's proposition that it is acceptable to leave it to an employee to determine whether and to what extent they will comply with an important safety regime that has legislative sanctions.

Damages

44. This accident, which is pleaded as a workplace accident, occurred in New South Wales, and so the law to be applied in assessing damages is, pursuant to the principle of John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503, the law of New South Wales, in this case the provisions of the Workers Compensation Act 1987 (NSW) (the Workers Compensation Act). The task of assessing damages in this matter was considerably simplified because counsel were able to agree on economic loss and other heads of damages, with the exception of damages for non-economic loss, and even on the question of general damages, they were not far apart. The relevant New South Wales legislation requires an injured worker's non-economic loss claim to be assessed as a percentage of a most serious case and then the award of damages becomes that percentage of a defined maximum sum, which for present purposes is $232,400. Mr Andrews, for the defendant, submitted that the plaintiff should be assessed in the range of 30-35 percent of a most serious case, and conceded that the appropriate figure would be at the upper end of that range. Mr Cranitch submitted that the appropriate figure was at about 40 percent.

45. I have read the medical evidence tendered by both the plaintiff and the defendant. I am satisfied that, while the plaintiff's complaints of lumbar spine pain emerged some time after the accident, they can be attributed to the very substantial impact and should be regarded as a significant aggravation of a pre-existing condition. I am satisfied that he continues to experience difficulties with his shoulder and foot, and that he continues to experience headaches, which are attributable to his significant head injuries at the time of the accident, as well as a degree of back pain.

46. The plaintiff sustained multiple and severe injuries in the accident, and required substantial medical attention. He has been left with significant sequelae in relation to his right shoulder and his foot, which is accepted by the defendant as being accident related. He also complains of ongoing pain in the lumbar spine, which he says is accident related, and which the defendant suggests relates, at least in part, to other causes, so that the totality of his lumbar spine problems should not be attributable to the accident.

47. Taking all the medical evidence into account, and the plaintiff's evidence, it seems to me that the appropriate assessment of non-economic loss pursuant to s 151G of the Workers Compensation Act is 40 percent of a most serious case, which results in an award of $92,960, and I award this sum. The other heads of damage were agreed by counsel in the following terms, which I consider to be appropriate, and award:

Past Economic Loss $121,824

Past Superannuation $11,695

Future Economic Loss $176,154

Future Superannuation $19,024

Griffiths v Kerkemyer $12,339

Past out-of-pockets expenses $42,873

Future out-of-pocket expenses $3,000

Fox v Wood $4,084

48. This amounts to an award, together with the general damages component, of $483,953. Payments previously made to the plaintiff by the defendant's workers compensation insurer are, under the New South Wales legislation, to be deducted from the sum awarded, and these amounted to $94,542. This amounts to a final award of $389,411, which I award, with costs.

49. I will hear the parties if there are any consequential orders necessary to deal with issues of interest under the New South Wales legislation.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 23 May 2003

Counsel for the plaintiff: Mr M Cranitch SC with Mr J Sainty

Solicitor for the plaintiff: Blumers Personal Injury Lawyers

Counsel for the defendant: Mr K Andrews

Solicitor for the defendant: Maliganis Edwards Johnson

Dates of hearing: 14 and 15 April 2003

Date of judgment: 23 May 2003