Fatigue is a serious health and safety risk, especially for workers undertaking high-risk work or driving. Causing or permitting workers to perform work while fatigued could have serious, even deadly, consequences, and expose you to liability for breaching health and safety legislation.

Late last year, the Victorian County Court imposed a fine of $475,000 on the Royal Automobile Club of Victoria (RACV) Ltd for failing to ensure its contractor drivers were protected from the risk of fatigue.

The tragic circumstances of the matter heard before the court were stated as follows:

Just after 1am on 10 March 2018, John Halls was killed when the RACV Roadside Assist vehicle that he was driving in the course of his employment, ran off the road and struck a tree. There was no collision with anyone or anything before the vehicle left the road, and no sign of braking or swerving before it hit the tree. There were no mechanical defects in the vehicle that might have caused it to run off the road.

Mr Halls had worked 89 hours of a 96-hour on-call shift, and 17 hours straight since his first callout the previous day. He was observed to be visibly tired by the last driver he assisted, when, going above and beyond the call of duty, he took a stranded driver into Healesville rather than leave him on a deserted country road. This combination of circumstances points inexorably to the conclusion he fell asleep at the wheel. Fatigue was the reason his vehicle ran off the road. That resulted in the collision and Mr Halls' death.

When considering the plea of guilty by the RACV, the Court noted that, inexplicably, the RACV had not considered the obligations to protect drivers against the risk of death or injury from driver fatigue. Despite its well-publicised involvement in public awareness campaigns about the risks drivers pose to themselves and others from fatigue, the only explanation the RACV could give the Court was that it “missed the issue”.

The RACV pleaded to failing to:

• provide information to contractors about the risks associated with fatigue;
• train contractors about how to protect against fatigue;
• suggest policies or procedures to assist contractors to minimise risks to drivers, who provided the service, driving while fatigued;
• provide Toolbox Safety Alerts to contractors about fatigue; and
• have fatigue management processes and communicating them to contractors.

Importantly, the Court found that the RACV did not have any processes in place to proactively review its policies and procedures to ensure it complied with its safety obligations in respect of driver fatigue. The Court considered that the RACV had made a fundamental error in assuming that because there had been no previous case of death or serious injury, that it was not in breach of its obligations in respect of driver fatigue.

The case is an important reminder that the absence of any serious incident does not mean that the risks to health and safety are eliminated. The legislation clearly imposes an obligation on businesses to take a proactive approach to detect and eliminate the risks. Compliance with this duty should not be assumed! Rather, continual efforts to monitor and verify are required.