The estate of an employee who died whilst on her way home from work, after working 60 hours of night shifts over 5 days, has been awarded almost $500,000 after winning a workers compensation journey claim in the Workers Compensation Commission.
On 22 May 2013, an employee who had been working as a cotton ginner for 1 month was killed whilst on her way home from work. On the day of the accident, the deceased employee had commenced her sixth straight night shift. She worked 7pm to 7am, working six days on and then two days off.
On the night of the accident, the deceased was sent home from work at 9.30pm due to a mechanical breakdown at the site. On the way home, the deceased turned her car 90 degrees into a B-double truck, which was unable to avoid the collision. The deceased died immediately. The police determined that the most likely reason for the deceased’s vehicle veering onto the incorrect side of the road was fatigue caused by her working hours.
Under the Workers Compensation Act 1987 (NSW), a dependent of a person who dies during their journey to or from work is able to bring an application against the employer. The deceased’s father, as administrator of her estate, made an application under the Act claiming that the long 12 hour night shifts that the deceased worked played a material and substantial role in the deceased falling asleep and losing control of her motor vehicle, resulting in her death.
The employer, Namoi Cotton Co-Operative, presented evidence from a number of its other employees who all stated that the deceased did not appear to be fatigued in the days or hours leading up to the accident. The deceased’s parents gave evidence that the deceased has been tired and falling asleep at gatherings in the weeks and days leading up to the accident as she got used to her new working hours.
An Arbitrator of the Workers Compensation Commission found that:
“because the deceased’s accident occurred after her sixth shift, having already worked 60 hours in the immediately preceding five days over five shifts, “it was more probable than not that the deceased was tired… these circumstances all point to me as it being more probable than not that the deceased fell asleep, particularly in a context of having worked such long hours over the previous 5 days of 12 hours each shift.”
The Arbitrator awarded the deceased’s father, in his capacity as administrator of the estate, the sum of $498,950.
Namoi Cotton Co-Operative then appealed the decision to the President Judge of the Workers Compensation Commission, who upheld the Arbitrator’s decision on the basis that “there was a real and substantial connection between the employment and the accident.”
Importantly, the judge stated:
“It is consistent with every day human experience that a worker who has worked 60 hours in five consecutive night shifts will be tired or suffering from some measure of fatigue…. I take judicial notice of the fact that a 35 hour working week is commonplace. Therefore, at the time of this accident the deceased had worked for a number of hours approaching double a common working week.”