A
USTRALIAN
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RANSPORTATION
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NDUSTRIES
CHRISTOPHERJONES,*JILLIANDORRIAN ANDDREWDAWSON
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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
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 oper-ating 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 discus-sion 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 impli-cated. 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 indi-viduals and companies need to be aware of when addressing fatigue in trans-portation 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 manage-ment (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.
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 ANDSAFETY
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.2The duties imposed under the OHSWAare designed to be
preven-tative, 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 out-come-based approach to the duties that it imposes. In other words, the legis-lation 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’.3The concept of a ‘workplace’ is also defined (OHSWA,
s. 4[1]).4These 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 partic-ulars 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 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 com-plied 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.
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 legis-lation 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 OHSWAprovides 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
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 faciebreach 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 Regulationsprosecutions. 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
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 Regimeregulations 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) Regulations1999, made under authority of the Road Transport Act1961 (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 Regulationsintroduce 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 pre-scriptive and non-prepre-scriptive 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 intro-duced primarily to make it legal to drive from Brisbane to Sydney in one shift.
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 investi-gation 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 competi-tion 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 recog-nise 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 Regulationsthat makes it an offence to require a driver to commit an offence against the Regulations, inclu-ding the provisions regarinclu-ding 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 Regulationsintroduce 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 Regulationshave flaws because they fail to address the impact that circadian factors have on fatigue.5In 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 Regulationsthat 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
Aviation
The Federal Government enacted the Civil Aviation Act1988, 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 OrderPart 48 (CAO48). These regu-lations 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 CAO48 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 CAO48, 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 CAO48 system to address fatigue consider-ations. 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 manage-ment 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 respon-sibility 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 Act1995 (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:
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 danger-ous 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.
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-on-shift, 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 establish-ing whether the person is a worker for the purposes of the Act6, it must be
estab-lished 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 Act1986 [SA] ss. 30–1).
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 environ-ment 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).
([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 penal-ties can also be established. Two possibilipenal-ties 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 guide-lines 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 situ-ations, 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 faciebreach of an
existing crime (e.g. that driving while fatigued can be considered reckless7); or
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 OilReport, 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.
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.
REFERENCES
Åkerstedt T (1991) Sleepiness at work: Effects of irregular work hours. In: T. Monk, ed., Sleep, Sleepiness and Performance. New York: John Wiley & Sons Ltd.
Anderson J, Minister for Transport and Regional Services (2001) Beyond the Midnight Oil: Managing Fatigue in Transport. Response of the Federal Government to the House of Representatives Standing Committee on Transportation Communication and The Arts, Canberra: Department of Transport and Regional Services.
Brown I (1994) Driver Fatigue. Human Factors36 (2), 298.
Colquhoun WP (1984) Rhythms in performance. In: Aschoff J, ed., Handbook of Behavioural Neurobiology. New York: Plenum.
Dawson D, Reid K (1997) Fatigue, alcohol and performance impairment. Nature 388, 235. Dinges DF (1995), An overview of sleepiness and accidents. Journal of Sleep Research 4
(suppl. 2), 4.
Dawson D, Fletcher A (2001) A quantitative model of work-related fatigue: Background and definition. Ergonomics44 (2), 144.
Dinges DF, Mallis MM (1998) Managing fatigue by drowsiness detection: Can technological promises be realised? In: Hartley L, ed., Managing Fatigue in Transportation. Proceedings of the Third International Conference on Fatigue and Transportation, Freemantle, Western Australia.Oxford: Elsevier Science.
Feyer A-M, Williamson A, Friswell R, Sadural S (2001) Driver fatigue: A survey of long distance transport companies in Australia. Australian Transport Safety Bureau, CR report no. 209. Folkard S (1981) Shiftwork and performance. In: Johnson L, Tepas D, Colquhoun W, Colligan
M, eds, The Ttwenty-four Hour Workday: Proceedings of a Symposium on Variations in Work–Sleep Schedules. Cincinnati: United States Department of Health and Human Services.
Folkard S (1997) Black times: Temporal determinants of transport safety. Accident Analysis and Prevention29 (4), 417.
Government of the Northern Territory (1998) Northern Territory Road Transport Fatigue Management Code of Practice. Darwin: Department of Transport and Works.
Government of Western Australia (1998) Fatigue Management for Commercial Vehicle Drivers. Perth: Office of Road Safety.
Hanecke K, Tiedemann S, Nachreiner F, Grzech-Sukalo H (1998) Accident risk as a function of hour at work and time of day as determined from accident data and exposure models for the German working population. Scandinavian Journal of Work, Environment and Health24 (suppl. 3), 43.
Krueger GP (1989) Sustained work, fatigue, sleep loss and performance: A review of the issues.
Work and Stress3, 129.
Lamond N, Dawson D (1999) Quantifying the performance impairment associated with fatigue.
Journal of Sleep Research8 (4), 255.
Lauber J, Kayten P (1988) Sleepiness, circadian dysrythmia, and transportation accidents. Sleep
11 (6), 503.
McCutcheon J (1997) Involuntary conduct and the case of the unconscious “driver”: Reflections on Jiminez. Criminal Law Journal 21 (2), 71.
Mitler MM, Carskadon M, Czeisler C, Dement W, Dinges F, Graeber R (1988) Catastrophes, sleep and public policy. Sleep11 (1), 100.
National Road Transport Commission (2002) Heavy Vehicle Driver Fatigue: Draft Policy Proposal. Melbourne.
Quinlan M (2001) Report of Inquiry into Safety in the Long Haul Trucking Industry.Sydney: Motor Accidents Authority of New South Wales.
Rosa R (1995) Extended workshifts and excessive fatigue. Journal of Sleep Research4 (suppl. 2), 51. Rozen P (1996) The new regulatory framework. Law Institute Journal10, 36.
Smith AP (1992) Time of day and performance. In: Smith AP, Jones DM, eds, Handbook of Human Performance: Vol. 3. State and Trait. London: Academic Press.
State Coroner, South Australia (1999) Finding of Inquest Concerning the Deaths of Susan Margaret Duffy, Walter Edward Duffy, Visa May Claxton, Christopher Verdun Claxton, Nita Claire Hastwell and Ivy Nell Hastwell(Chivell W, Coroner). Inquiry no. 39 of 1998.
Williamson A, Feyer A-M, Friswell R, Finlay-Brown S (2000) Development of measures of fatigue: using an alcohol comparison to validate the effects of fatigue on performance. Australian Transport Safety Bureau, CR report no. 189.
Williamson A, Sadural S, Feyer A-M, Friswell R (2001) Driver Fatigue: A survey of long distance heavy vehicle drivers in Australia. Australian Transport Safety Bureau, CR report no. 198.
APPENDIXI
Example of a conflict between the general duty and specific regulation
A trucking company rosters its drivers according to the Road Transport Driving Hours Regulations and strictly enforces its employees’ driving hours. However, while returning to Adelaide from Sydney, a driver falls asleep at 5am and crashes his truck into oncoming traffic.
The driver (and company) had complied with the regulations, but the company may have failed to provide a safe working environment, as required under s. 19.
APPENDIXII
Certain prohibited requests etc.
75. A person must not ask, direct or require, directly or indirectly, a driver to do something if the person knows, or reasonably ought to know, that by complying, the driver would or would be likely to commit:
