By Mark Dignan LLB MCOM

In New Zealand fatigue is legally acknowledged as a ‘hazard’ in the workplace that must be mitigated against. In the Health and Safety at Work Act 2015,¹ the Act states clearly that, although all parties in a workplace have enforceable duties, the ‘primary duty of care’ rests with the employer.² The Act names the Civil Aviation Authority (CAA) as overseeing the application of the Act in aviation. The duties described are consistent with the existing regulatory and contractual obligations in aviation. This is reflected in individual Airline Operator’s safety management systems (SMS) and fatigue risk management systems (FRMS). Recent prosecutions in New Zealand and Australia have demonstrated a willingness to hold employers responsible for harm caused by fatigue accumulated in the work place.³

Fatigue is a physiological state of reduced physical or mental performance capability resulting from sleep loss or extended wakefulness, circadian phase or workload (physical and/or mental activity) that can impair alertness and the ability to safely operate or perform safety-related duties.⁴

Fatigue is more than ‘being tired’ and is recognised as ‘insidious and cumulative’. It makes individuals “...more forgetful, inattentive, apathetic, and moody. They make poorer decisions, are less communicative, less vigilant, and their responses become slowed and variable”.⁵ Fatigue is similar to hypoxia where the individual affected may not even recognise that they are impaired. Understanding of the serious risks associated with fatigue has improved greatly over recent decades with the development of the science of sleep and fatigue, and the law is now catching up.

In October 2016 a tractor operator crashed and died while driving a tractor home, he had logged a 16.75 hour day in harvesting operations. The Worksafe New Zealand investigation found that the employee had worked 197.25 hours in the two weeks leading up to the incident and, critically, they identified fatigue was the most likely cause of the accident. Worksafe successfully prosecuted the employer, an agricultural contractor (Micheal Vining Contracting Limited), in the Huntly District Court.⁶ A fine of $325,000 was deemed appropriate, although this was reduced for reasons that were supressed by the Judge.

The employer had a health and safety document that identified fatigue as a high risk hazard and outlined management steps including the monitoring of work hours and break times.

WorkSafe Deputy General Manager, Investigations and Specialist Services, Simon Humphries said: “Getting the job done is important, but not if the hours required to do it put workers at risk of injury or death”.⁷

This decision was significant for several reasons. First, it is rare to see fatigue cases, especially when prosecuted to conclusion, as they are usually settled out of court. While admittedly less stressful and traumatic for the families of any bereaved, such financial settlements result in an absence of case law and judicial findings. Secondly, the case suggests that employers’ duties to mitigate extend beyond the boundaries and time spent in the workplace (at least in regard to fatigue hazards).

This New Zealand finding reflects a case in Australia earlier this year⁸ where an employee at a chicken farm fell asleep at the wheel and crashed on his way home from work. This resulted in the amputation of his forearm. The subsequent workers compensation case found there was pressure due to fewer employees being available to share the workload and he was asked to do certain jobs because of his build and stature. The worker stated that he could not complain because he was worried that if he did so, he would be moved to another farm.

The NSW Workers Compensation Commission found that the worker’s fatigue was related to his employment and accepted that there was a “real and substantial connection” between the worker’s employment and the accident causing injury in accordance with the journey provisions of the Workers Compensation Act 1987 (NSW).

These recent findings draw a line under the fact that fatigue is a hazard in the workplace that must be mitigated. All employees (including pilots) have duties and should seek to mitigate and report all instances of fatigue, and use their employer’s fatigue risk mitigations. It also suggests that the employer’s ‘primary duty of care’ may extend to hazards accrued in the workplace, but which manifest in an incident outside the place of work.

Employees who are experiencing fatigue pose a health and safety risk to themselves and to others in the workplace, but cumulative hazards such as fatigue may not surface until work is completed. Pilots and ATCs driving home from work after a ‘back of the clock’, after an extension, disruption, or long day’s work, should be extra vigilant. Employers must do all that is practicable and reasonable to mitigate all hazards or potential hazards, and should regularly assess their safety management and fatigue risk management systems to ensure they are both fit-for-purpose and effective. Every employee is entitled to the reasonable expectation that they will come home to their family after a day at work.

¹Health and Safety at Work Act 2015 at S 16
²Health and Safety at Work Act 2015 at S 36
³https://worksafe.govt.nz/about-us/news-and-media/tractor-driver-had-worked-almost-200-hours-in-the-fortnight-leading-up-to-his-death/
⁴ICAO Fatigue Risk Management Systems Manual for Regulators, First Edition 2012, International Civil Aviation Organization, Montréal
⁵ICAO Fatigue Risk Management Systems Manual for Regulators, First Edition 2012, International Civil Aviation Organization, Montréal
⁶Under sections 36(1)(a), 48(1) and (2)(c) of the Health and Safety at Work Act 2015
⁷https://worksafe.govt.nz/about-us/news-and-media/tractor-driver-had-worked-almost-200-hours-in-the-fortnight-leading-up-to-his-death/
⁸In Naivalu v Ready Workforce (a Division of Chandler Macleod Pty Limited) [2018] NSWWCC28 https://www.workplacelaw.com.au/workers-car-accident-a-reminder-of-managing-fatigue/