J. Human Ergol., 30:107-111, 2001

LEGAL ISSUES IN ACCIDENTS CAUSED BY SLEEPINESS

Shantha M.W. RAJARATNAM Centre for Chronobiology, Guildford, UK School of Psychology, Psychiatry and Psychological Medicine, Monash University,Australia

The impact of shift-work on sleep, performance and general health appears to be substantial. The most immediate consequence of night shiftwork is sleep loss. The aim of the present paper is to describe legal cases involving accidents attributed to sleepiness or fatigue, mainly as a consequence of shift-work or prolonged work hours, in the UK, USA and Australia. The paper will describe how legal systems are dealing with such incidents and how this may change in the future. Accidents related to sleepiness may result in criminal prosecution, for example charges of culpable driving. For acts performed while a person is sleeping (e.g. motor vehicle accidents), the legal question of voluntariness may be raised. The issue of employers' liability in such cases is contentious. Special liability regimes are in place to cover employers' liability. Employers may be deemed liable for injuries of third parties caused by wrongful acts of employees committed in the course of their employment. In the future, it is likely that employers will need to take greater precautions to reduce sleepiness and fatigue in the workplace, especially where the risk to public and environmental safety, health and productivity are significant.

It is now estimated that 20% of the population work outside the regular 08:00-17:OOhours working day, and this figure is likely to increase (MONK, 2000). While the increase in shift operations has led to many benefits, such as greater flexibility in working time, the provision of goods and services throughout the day and night, and perhaps greater employment opportunities, the negative effects of shiftwork and sleep loss on sleep-wake behaviour, mental performance, alertness and general health are slowly being appreciated (RAJARATNAM and ARENDT, 2001). For example, in a recent consensus statement signed by an international group of sleep and chronobiology researchers, sleepiness or fatigue was described as 'the largest identifiable and preventable cause of accidents in transport operations (between 15-20% of all accidents), surpassing that of alcohol or drug related incidents in all modes of transportation' (AKERSTEDT, 2000). Accidents associated with sleepiness often result in litigation. The aim of the present paper is to describe legal cases involving sleepiness-related accidents, and to identify common themes in such cases. The review is limited in scope to legal cases from the UK, USA and Australia. This is not to suggest that sleepiness related accidents do not occur in other jurisdictions. As with other civil actions, many sleepiness cases are voluntarily settled by agreement of the parties, and hence are not formally reported. Therefore, this review cannot be regarded as a summary of current legal practise, but rather is intended as an academic review of legal precedents from notable cases. Many of the cases cited involve vehicle accidents, which are usually related to shiftwork. The two main issues addressed in this paper are legal responsibility for actions performed while a person is sleepy or asleep, and the question of employers' liability.

Legal responsibility for actions performed while a person is asleep/sleepy Generally, in the criminal law, legal responsibility is imputed only if acts in question are performed voluntarily and with a guilty mind (e.g. intention, recklessness, knowledge, belief). The question arises as to how the law deals with actions performed while a person is sleeping. If, for 108 S. RAJARATNAM example, a person has violent outbursts during his sleep and injures or kills another, he may argue that his actions were involuntary, and hence be found not guilty [see R v Burgess (1991)]. In the case of Jiminez v The Queen (1992 the defendant (i.e. the person against whom the proceeding is brought) and three passengers had been driving through the night from 23:OOh. At approximately 06:OOh,the defendant apparently fell asleep, and the vehicle collided with a tree. As a result one passenger died. At trial, the defendant was convicted of culpable driving, and appealed to the High Court of Australia. The High Court allowed the appeal, and the conviction was quashed. The main question considered by the court was whether the driver was so tired that, in the circumstances, his driving was a danger to the public. In addressing this question, the court discussed in detail which period of driving was relevant in determining whether the conduct was a danger to the public. The High Court referred to statements made by King C.J. in the South Australian case of R v Kroon (1990): 'Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore ... responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to falling asleep is sufficiently contemporaneous with the death or bodily injury... The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep' (p.18). The High Court concluded that the relevant period of driving is that which immediately precedes the time of falling asleep, although this period must be sufficiently contemporaneous with the time of impact and the driving during that period must be the cause of the impact. They stated that the matters which bear on the question of whether the driving was a danger to the public included the period of the driving, lighting conditions (whether it was night or day), heating/ventilation in the vehicle and the degree of tiredness of driver. The warning of onset of sleepiness constituted 'some' evidence of the degree of tiredness of the driver. However, in their court's opinion, it would not necessarily follow that a driver who falls asleep had sufficient forewarning of sleepiness to enable him to stop. HORNE and REYNER (1999) argue that although drivers may not recall actually falling asleep, they are very likely to have been aware of the precursory feelings of sleepiness. The question of whether such findings will influence legal decisions in the future will depend on their generalisability to different driving conditions, and also the degree of inter-individual variability. In R v Franks (1999), the Victorian Court of Appeals (Australia) allowed the appeal of a semi- trailer driver who had been convicted at trial of the charge of culpable driving causing death. The vehicle belonging to the accused (i.e. the person whom it was alleged had committed the offence) had collided with that of another driver on a highway at 20:15h. The other driver was killed in the collision. Evidence presented at trial revealed that over the preceding 18 days, the accused had driven for very lengthy periods without appropriate rest. The Crown contended that the accused must have been driving in a state of extreme fatigue at the time of the collision. To support this claim, the Crown went to great lengths to re-construct the accused's pattern of driving on the days preceding the collision. The Crown called a driver fatigue expert to give evidence as a basis for inferring that the accused must have been in a fatigued state. A key aspect of the expert's evidence that was relied upon by the Crown was the three-stage model of driver fatigue, i.e. stage 1 alert, stage 2 drowsy driving and stage 3 dim driving. Much of the expert's testimony relied on laboratory-based 'simulator' driving studies. The main criticism was the great discrepancy between the consequences of a crash on an actual road with those on a simulated road. Counsel argued: '[I]f a truck driver driving a semi trailer makes an error of judgment, he ends up under 40 tonnes of wreckage ... whereas in the laboratory, the learned doctor is going to say, "Tut, tut, you shouldn't have done that". That's a huge difference, isn't it?'. It is conceivable that similar criticisms could be made of the evidence of many experts who mainly rely on data derived from laboratory studies as the basis for their opinions in court. Another issue concerning the application of experimentally derived statistics to the general population is the 109 degree of inter-individual variability in the data. If a high degree of variability were observed, it may mean that the particular conclusion cannot be universally applied. The trial judge in R v Franks addressed this issue when he asked the following question of the expert during cross-examination: ' Does your research work, or any of the research work that you've read about, indicate that there is a high degree of variation in individuals? In other words, their capacity to resist the onset of fatigue upon equivalent loads being imposed?'. In applying scientific data to legal situations, an expert should be mindful of issues such as generalisability and variability. The issue of whether driving without awareness constitutes a state of automatism (i.e. a legal defence based on lack of voluntariness) was discussed by the UK Court of Appeals in Attorney General's Reference (No 2 of 1992). A heavy goods vehicle driver drove onto a motorway hard shoulder and collided with a stationary vehicle, killing two people. He was charged with causing death by reckless driving. The Crown contended that the accused was driving in a state of automatism, where his consciousness was so impaired that his mind did not control his actions. The particular form of automatism was described as driving without awareness, which is 'a trance-like state resulting from repetitive stimuli received as a result of driving long journeys on straight, flat, featureless motorways'. However, the court held that driving without awareness was not sufficient to make out a defence of automatism, as automatism required a total destruction of voluntary control, whereas someone driving without awareness still had some control of the vehicle. Therefore, application of the defence of automatism to such situations is unlikely to be successful. A discussion of the degree of punishment imposed for convictions of causing death by dangerous driving in sleepiness-related vehicle accidents can be found in Boyd v HM Advocate (2000). Boyd had fallen asleep at the wheel and had crossed in excess of the speed limit into oncoming traffic. A sentence of 12 months imprisonment was substituted on appeal, on the basis that Boyd had a clean driving record, had shown remorse, was otherwise of good character and had not been using drugs or alcohol.

Employer liability In general, the main sources of employer liability are vicarious liability (i.e. legal principle according to which employers are held liable for omissions or acts of employee), breach of the employer's personal and non-delegable duty of care, and vicarious statutory duties. The traditional rules for incidents occurring while an employee is travelling to and from the work place are that: i) the employer has no general duty to ensure that employees got enough rest, beyond complying with the applicable labour laws, and ii) where it is the employee's responsibility to arrange transportation to and from the work place, the employer has no right and hence no legal duty to prevent them from driving ( UKE,1996). Significant developments in this area of law have occurred in the USA (for review, see MOORE- EDE, 1995). In an early case, Brown v Chem Haulers Inc (1981), the Alabama Supreme Court rejected a claim of employer liability. In that case, the plaintiff (i.e. the party who brought the action) alleged that he had been injured in a collision caused by fatigue, after he had been working (almost non-stop) for approximately 30 hours. Similarly, in Pilgrim v Fortune Drilling Company Inc (1981), the United States Court of Appeals (5 Circuit) held that it was not negligent for an employer to permit its employee to drive home in an exhausted condition. Here the plaintiff was injured after an employee of the defendant collided with the plaintiffs vehicle. The employee had been working 12h night shifts, with 3h commuting time each way to and from work. In Robertson v LeMaster and N & W Railway Co. (1983), the West Virginia Supreme Court of Appeals extended the bounds of employer liability, in situations where an employer 'actively created the danger represented by an exhausted person behind the wheel' ( UKE, 1996). The employee, while driving home after work, caused a collision that injured the plaintiff. The court held that the trial judge had erred in ruling that the employer had no duty of care to the plaintiffs, in requiring him to work very long hours and then sending him out on the highway in an obviously exhausted. The plaintiff required an employee to work for long hours (in this case 27h without rest), without providing alternative transportation or rest facilities. 110 S. RAJARATNAM The question of employer liability for accidents that occur while an employee is returning home after prolonged periods of work was dealt with by the Oregon courts in the highly publicised case of Faverty v McDonald's Restaurants of Oregon (1991). The plaintiff, Frederick Faverty, was badly injured in a collision with another vehicle driven by Matthew Theurer, a high school student who worked part-time at a local McDonald's restaurant. Theurer, who was killed in the collision, was returning home after finishing work. The cause of the collision was fatigue; Theurer had fallen asleep at the wheel. On the previous day, Theurer had worked after school from 15:30h to 20:00h, and then from midnight until 08:21h. Faverty sued McDonald's alleging that MCDonald's was negligent in scheduling Theurer to work too many hours. Faverty was awarded US $400,000 in damages. McDonald's appealed, arguing that it had not violated any labour laws, and that it had no duty or right to control Theurer's activities after he had left work. The Oregon Court of Appeals rejected the appeal and affirmed the verdict. The court cited the following facts as being relevant to their decision: i) managers were aware that Theurer was tired during and after the night shift, ii) McDonald's knew that Theurer was a high school student, and that most high school students tended to drive to and from work in their own vehicles, iii) as the shift-scheduling was done by McDonald's, they knew or ought to have known about the number of hours Theurer had been working, iv) normally McDonald's did not roster high school students to work after midnight, v) McDonald's policy was not to roster employees to work two shifts in one day, due to concerns relating to fatigue, and vi) at least two McDonald's employees had previously had car accidents while returning from work after night shifts (see UKE,1996). In Smith v Stages and Darlington Insulation Co (1988) two employees had worked for 19h without sleep at a different location to their usual workplace. In accordance with a union agreement, they were paid for a further 8h in which they could rest, and a further 8h to travel home. Instead of resting after the shift, the employees drove home in a personal vehicle. An accident occurred on the way home in which one employee was injured and later died. The UK Court of Appeals held that when an employee is travelling between two places of work, he is acting in the course of his employment, even though he may start from his home or go via his home to the other place of work. The employers should have advised the employees not to travel without first resting. The employers were therefore held to be vicariously liable. In the previous section on legal responsibility for actions performed while a person is sleepy/asleep, criminal charges against individuals were considered. In some situations, it may also be possible to instigate legal proceedings against employers, for example on charges of corporate manslaughter. Under the present law in the United Kingdom, there have been relatively few successful corporate manslaughter prosecutions. The main difficulty with these cases is what is referred to as the doctrine of identification; that is, a corporation can only be convicted for criminal actions if it is possible to attribute the wrongful actions of identified individuals to the corporation itself. This would require that the individual charged can be identified as the 'embodiment of the corporation'. In one of the few successful prosecutions for corporate manslaughter, a driver who was employed by a haulage firm fell asleep at the wheel and caused a collision, killing two people. The driver had spent more than 60h per week driving, violating the law on driving hours. Two of the company directors were found guilty of corporate manslaughter, owing to their gross negligence in ignoring the employee's excessive working hours (R v Cox, Bowles & Bowles). Proposed reform of the law on corporate manslaughter in England and Wales may result in more successful prosecutions in the future. The proposed new offence of corporate killing refers to ' management failure', and considers the way in which 'a corporation's activities are managed or organized fails to ensure the health and safety of persons employed in (or affected by) its activities.

Conclusions As a result of increasing economic and social demands, we are rapidly evolving into a 24h society. With the predicted growth in shiftwork, litigation as a result of sleepiness-related accidents is likely to increase. Legal developments in this area continue to be informed by scientific advances in the fields of chronobiology and sleep research. Extrapolation of laboratory-derived models to real 111

cases may be problematic, as discussed in this paper in the context of R v Franks . It is possible that in the future, long-term health problems associated with shiftwork, for example cardiovascular disease (BOGGILD and KNUTSSON,1999), may result in litigation. The general position taken by courts for accidents caused by an employee who falls asleep at the wheel in their personal vehicle, outside the work place, is that the employer is not liable. However, in some cases (particularly in the USA) courts have extended the bounds of employer duties to their employees to include situations where an employer has actively created a risk of an accident caused by sleepiness, by requiring an employee to work for long hours. Such developments suggest that employers should take precautions to reduce the risk of sleepiness-related accidents, especially where the risk to public and environmental safety, health and productivity are significant. Successful prosecutions for corporate manslaughter are likely to serve as a strong deterrent to employers who do not actively manage their employees work schedules, and will no doubt make a strong impact on industry practice.

Acknowledgments The author gratefully acknowledges the contributions of Ms Susan Marmaduke (Harrang Long Gary & Rudnick, USA), Professor James Home (Sleep Research Centre, Loughborough, UK) and Dr Martin Moore-Ede (Circadian Technologies, USA), and advice given by Professor Torbjorn

0 Akerstedt (IPM and Karolinska institutet, Sweden) at the outset of this research.

References AKERSTEDT, T. (2000) Consensus Statement: Fatigue and accidents in transport operations. J. Sleep Res., 9(4), 395. BOGGILD, H. and KNUTSSON, A. (1999) Shift work, risk factors and cardiovascular disease. Scand. J. Work.Env. Hea., 25(2), 85-99. HORNS, J. and REYNER, L. (1999) Vehicle accidents related to sleep: A review. Occup. Environ. Med., 56(5), 289-294. MARMADUKE, S. (1996) Sleepy workers may pose new liability for employers. Medical Consultants Network News, 10(3). MONK, T. H. (2000) What can the chronobiologist do to help the shift worker? J. Biol. Rhythms, 15(2), 86-94. MOORE-EDE, M. (1995) When things go bump in the night. American Bar Association Journal, January, 56-60. RAJARATNAM, S. M. W. and ARENDT, J. (2001) Health in the 24-hour society. Lancet , 358, 999-1005.

Legal cases Attorney General's Reference (No 2 of 1992). Boyd v HMAdvocate (2000) [HCJ Appeal, 2000 G.W.D. 8-313]. Brown v Chem Haulers Inc (1981) [402 So. 2d 887]. Faverly v McDonald's Restaurants of Oregon (1991) (Multnomah County, Oregon, Circuit Court No. 9001-00394). Jiminez v The Queen (1992) [173 CLR 572 F.C. 92/102]. Pilgrim v Fortune Drilling Company Inc (1981) [653 F.2d 982]. R v Burgess (1991) 2 QB 92. R v Cox, Bowles & Bowles (The Times Newspaper, 20 November 1999). R v Franks (1999) [VSCA 3916 April 1999]. R v Kroon (1990) [52 A Crim R 15]. Robertson v LeMaster and N & W Railway Co. (1983) [301 S.E.2d 563]. Smith v Stages and Darlington Insulation Co (1988) [I.C.R. 201].