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Written by Peter Carter

August 29, 2014

A casino croupier who crashed when homeward bound at 4:00 am after a 12-hour shift has sued the casino for ignoring safety measures she claims would have prevented the accident.
Tracey Fraser recalled driving the familiar route on her 50 min journey home and then suddenly correcting a violent swerve to the left before impacting the median strip and becoming airborne.
She did not recall the vehicle rolling 4 times or how she was extracted from the car.

She described the sudden event as “one-minute I’m driving and the next minute I’m heading for the embankment”. A “micro sleep” event – a phenomenon where a person in fatigue unintentionally falls asleep for a few seconds or even minutes then waking sometimes without being aware of they have slept – accounted for loss of control.

Burswood were claimed to be its failure to warn of the adverse effects upon shift workers of circadian rhythm disruption. The Circadian cycle is the biological pattern associated with sleeping at night and waking during the hours of daylight.

It also failed to warn – so claimed the plaintiff – in relation to the effect of “accumulated sleep debt” which was likely to cause fatigue and risk falling asleep whilst driving. Judge Peter Stevenson agreed that the duties were owed, but was not convinced that falling asleep had been the cause of the accident.

Tracey had after all, made no reference to falling asleep in her evidence. Her account of what happened indicated, so said the court, was consistent with being alert up to the moment of loss of control. The court was not prepared to accept that falling asleep was the cause when there were several other plausible causes.

The appeal judges agreed with this finding and also ruled that Tracey would probably have taken little heed of the warning given her evidence that she preferred to get on the road immediately to get home as soon as possible.

Four distinct phenomena relevant to sleep deprivation of shift workers were discussed at length. In addition to the three discussed above – microsleep, accumulated sleep debt and interruption to the circadian cycle – the court also heard expert evidence on “masking.”

That occurs where symptoms of fatigue are suppressed whilst in an environment which artificially simulate style daylight e.g. in the bright lights of a 24 hour casino, but where there is an onset of the fatigue once the stimuli are removed.

Tracey’s claim was rejected and she was ordered to pay the casino’s legal costs.

Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 Martin CJ, McLure P and Newnes JA 15 July 2014

Categories: Personal Injury , Litigation & Law Practice

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