It is never advisable to drive while you are tired and fatigued. Doing so, especially in the course of employment, can open a worker up to not only risk of an accident but also potential criminal liability.
The Heavy Vehicle National Law (HVNL) is commonwealth legislation that tackles the issue of truck driver fatigue in order to promote the practice of safety. In Queensland, the Heavy Vehicle National Act 2012 (Qld) is the state legislation that enacts the HVNL. The HVNL creates new forms of criminal liability in response to the recognition that fatigue-related injuries and deaths are usually caused by numerous factors. As such, the responsibility of fatigue management is a professional responsibility imposed on everyone from the experts in logistics scheduling the routes to the recipients of the goods being transported.
The term ‘fatigue’ has been widened from its previous definition in the older Transport Operations (Road Use Management) Act 1995. The HVNL sets out in s223 the definition of fatigue to include, “lacking energy.” This is included with definitions (not limited to) – feeling sleepy, feeling physically or mentally tired, weary or drowsy, feeling exhausted and behaving in a way consistent with any of these definitions.
This is further emphasized in s224 where it outlines the matters for the court to consider when making the determination on whether or not a driver is fatigued, including the “body of fatigue knowledge” and the “signs of fatigue.” These are in addition to: common understanding of fatigue, causes of fatigue, any other matter prescribed by the national regulations. It is also important to note that s224(1) does not limit what the court may consider when deciding whether a driver was impaired by fatigue.
A very important section to consider is s261, which contains the extended liability offence principle. It basically makes everyone involved with the heavy vehicle in question liable if the driver of that vehicle contravenes a minimum rest or maximum work requirement. They can no longer rely on the longstanding mistake of fact defence (e.g. if someone tells you that everything is fine and you take their word for it) because of s229(4). The only defence is an ‘all reasonable steps defence’ pursuant to s261(4). The ‘all reasonable steps defence’ is detailed in s618 and illustrates the restrictive nature of the defence. It is important to note that ‘all reasonable steps’ or in the alternative ‘no reasonable steps that could be reasonably expected.’ means that if an employee took ‘some reasonable steps’, that conduct is not sufficient to be protected by the s618 defence.
A great illustration of this situation is in the case of Western Freight Management Pty Ltd v Roads and Maritime Services  NSWCA 132 (22 April 2014). It was held that merely providing an employee with a training manual that gave responsibility of proper loading to a driver did not amount to taking all reasonable steps to prevent liability. The company should have taken a more direct role in supervising the driver’s conduct that led to the proper loading of the truck.
If you have been in an accident that was caused by the fatigue of another driver or your own fatigue due to a strenuous work schedule, it is imperative that you contact an accredited specialist in personal injury to be properly informed of your rights.