British workers put in some of the longest hours in Europe, and the burden falls particularly heavily on shift workers. You have often seen the signs "Tiredness Kills" along motorways. In many instances this is literally true and over-tired drivers coming home from long shifts pose a real hazard to themselves and other road users.
Tired workers on long shifts operating machinery and equipment put themselves and their co-workers at risk and notwithstanding the Working Time directive, hours worked remain stubbornly high.
This culture of long working hours is not confirmed to the lorry driver or the factory worker. City workers - including those in self-employed consultancy contracts, put in long shifts - often on complex projects. Many of the readers of this article may recognise themselves in this description.
So what if a worker (employee or otherwise) injuries himself or others as a result of a tiredness-related accident on the way home from a long shift at work – possibly one of several? Could he, or the other crash victims, sue the employer or contractor? Might the RTA insurers seek to pass off some or all of the damage onto the employer/contractor’s insurers? [References to workers from this point mean employees and the self-employed; references to employers include contractors.]
Of course the first question to be asked is the extent of the duty of care. Obviously a duty arises generally in this matter as between employee and employer. But in order for there to be a viable legal claim, that duty must extend beyond the workplace and into the worker’s time away from work.
Would the claim meet the three tests of proximity; that it is fair, just and reasonable to impose a duty, and reasonable foresight of harm; (Caparo Industries v Dickman 2 AC).
Assuming the duty of care arises, the extent and standard of that duty must be defined and the standard of the employers care must be reasonable in all the circumstances. Negligence has classically been defined (in an employment context) as:
“… the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 @ 784
So does an employer owe the employee a duty of care to monitor (and if necessary, limit) the working hours of an employee? What is reasonable depends on what a person ought to know and what actions are reasonable in the light of that knowledge.
Foresight of harm
In the arena of common law liability and in aspects of employer’s statutory duty, the court will expect an element of realism about risks, foresight of harm and what is reasonably practicable. See Koonjul v Thameslink Healthcare Services  PIQR P127 CA. In rejecting the claim, Hale LJ at p.126:
"For my part, I am quite prepared to accept those statements as to the level of risk which is required…that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability… I accept that the purpose of regulations such as these is to place upon employers obligations to look after their employees’ safety which the might not otherwise have. However, in making such assessments as these there has to be an element of realism… It seems to me that what does involve a risk of injury must be context-based…those employees were carrying out what may be regarded as everyday tasks…"
In a very different context, the case of Yorkshire Traction Co Ltd v Searby  EWCA Civ 1856:
“In relation to breach of an employer’s statutory duty, regulations did not require complete and absolute protection. The test for liability involves considering the degree of risk. It did not follow that liability was established simply by showing that a risk was reasonably foreseeable, if a risk was very low.”
Knowledge of the risks associated with tiredness
There is a considerable body of published material which demonstrates the link between tiredness and traffic accidents, in particular on motorways.
In 2001 ROSPA published a literature review and position paper concerning Driver Fatigue and Road Accidents. The document makes a number of relevant findings. The study indicated that driver fatigue was responsible for up to 20% of serious accidents on motorways. The incidence peaks between 2am and 6am. Journeys for work were considered to be "high risk". Road accidents occurred more frequently on the way home from morning or night shifts. Among many recommendations to avoid the problems associated with driver fatigue, were to avoid a long drive after having worked a full day and avoid driving in the small hours.
Although such recommendations are of no direct legal effect, the report also said;
“Employers have a vital role to play in managing the risks involved in their employees who drive for work purposes. As part of their health and safety policies and practices, employers should adopt and implement the principles of managing occupational road risk, with particular reference to reducing the risk of their employees being involved in a sleep related driving accident.”
A study in 2004 into Sleep-Related Fatal Vehicle Accidents (Radon & Summala) was based on what was described as the ‘broad consensus’ that fatigue represented a major problem for road safety; they analysed the impact of sleep deprivation (reduction) on the incidence of fatal accidents.
A review of Vehicle Accidents Related to Sleep (Horne & Reyner)  concluded:
"Vehicular accidents related to sleep can be reduced through a greater awareness by drivers and employers of the danger of driving while sleepy, and that such driving behaviour is unacceptable, particularly to other road users. Work and other time schedules should be planned so as to minimise exposure to prolonged driving under monotonous conditions during the more vulnerable times of the day and night."
Case law – the impact of fatigue on driving
In Eyres Atkinsons Kitchens (2006), E was a kitchen fitter who used his van to drive to and from jobs. It was conceded that the employer could be liable in negligence if the employer cause or permits a worker to work when tired, if that tiredness causes the employee’s concentration to lapse and an accident – for example – with machinery arose.
The defendant sought to draw a distinction between those circumstances and when an employee drives a vehicle when tired.
The Judge (Crane J) rejected the distinction, and held that “If it is established that the employer, by an unsafe system, or by instructions given to the employee, in fact causes an employee to drive when too tired, the employer can in my view in principle, be held liable”. That finding was not challenged on Appeal.
The Working Time Regulations ("WTR") 1998 are often circumscribed by permitting the employee to opt out of Reg 4 (maximum working week) as is permitted under Reg 5.
Under Reg 10 (against which there is no opt out) a worker is entitled to a rest period of not less than 11 consecutive hours in each 24-hour period during which he works for his employer. Reg 12 requires rest breaks (30 mins in each 4½ hour period).
The impact of the WTR was considered in Eyres. Crane J. accepted that whether or not breaches of the WTR give rise to a separate cause of action akin to negligence or breach of statutory duty in such instances; the WTR are potentially relevant to the prevention of accidents.
In my view, breach of the WTR in such circumstances may be considered akin to breaches of the HSW Act which do not of themselves give rise to a cause of action, but may be relevant to allegations of negligence.
In considering whether the employer’s approach to working hours and health and safety in general was acceptable; Crane J noted that “it was left to individuals to say ... if they needed to stay overnight or take a rest”. He clearly did not consider that to amount to a system.
The Judge noted that “there was a complete failure to carry out a risk assessment about the risks of driving long hours, or indeed give any serious thought to the risk”. There was no system for minimising what the Judge described as “the obvious risks”. He indicated such a system would include strong advice to rest.
Alternative legal analysis
An alternative approach may be to argue the action on the same basis as one might a "stress at work" case.
The most helpful enunciation of the judicial approach to such cases is that of Hone v Six Continents Retail Ltd  IRLR 49, following on from Hatton v Sutherland in which LJ Hale gave the following guidance which has been approved in subsequent decisions:
"These then are the questions and the possible indications that harm was foreseeable in a particular case. But how strong should those indications be before the employer has a duty to act? ….. But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it."
In my view, employers who do not have in place sufficient and stringent criteria, reviews and policies concerning excessive working hours (whether for employees or contractors) – especially for those employees who cycle, motorbike or drive to work – are placing themselves at real risk of actions for injury loss and damage arising out of accidents not only whilst at work, but also to and from the place at work.
Colm Nugent is a member of the Insurance Division specialising in Personal Injury and Employment litigation. He has been listed in The Legal 500 for a number of years.