NEGLIGENCE — Duty of care to whom? — Employee — Employee injured in road accident whilst driving excessive hours after long working day — Whether employer liable for causing employee to drive whilst too tired
Eyres v Atkinsons Kitchens and Bedrooms Ltd [2007] EWCA Civ 365
CA: Ward, Moore-Bick LJJ and Sir Martin Nourse: 24 April 2007
Extreme panic reaction resulting in a driver losing control of a van when driving long distances after excessive hours of work and suffering serious injury in the ensuing accident was, on a balance of probabilities, caused by a “micro-sleep” due to his tiredness and for which the employer was liable in negligence or breach of statutory duty.
The Court of Appeal in reserved judgments so held allowing an appeal by Michael Eyres from a judgment of Crane J in Leeds District Registry on 24 May 2006 in favour of the employer, Atkinsons Kitchens and Bedrooms Ltd, on grounds that the employee’s inattention from use of his mobile phone had been the cause of his accident. The employee’s overall contributory negligence for not wearing a seat belt and for driving whilst tired was assessed at 33%.
The claimant, a 20-year old kitchen fitter, was employed by the defendant. On 11 August 2004 he left the employer’s factory in Bradford at 4 am, sharing the driving of the van with his employer, to fit a kitchen in Swindon and thereafter to another job in Sidmouth. Leaving Sidmouth at 7 pm, the claimant agreed to do the drive back to Bradford, during which he made a number of calls/text messages on his hands-free mobile phone. His employer slept during much of that journey. At 10.15pm the accident occurred on the M 1, a witness following the van stating how he saw it brake violently and swing from side to side, the driver then losing control, the van rolling over and finishing up on the central reservation. No other vehicle was involved. The claimant, not wearing a seat belt, was flung out and seriously injured.
WARD LJ said that the judge had found the claimant lacked frankness and remembered more of the accident than he said. Thus the judge should have reminded himself that in view of the lies or lack of truth he had to be cautious before accepting the claimant’s case that “I must have fallen asleep at the wheel”. All the circumstance had to be analysed to see where the balance of probabilities lay. The judge had taken account of all the circumstances but, essentially, had failed to analyse them to balance one probability against the other.
The judge had accepted the claimant was tired – he had been awake 19 hours. Absent use of his phone, there was no stimulation to keep him awake. It was dark, his employer slept and the road was monotonous. His circadian rhythms would have been promoting sleep. Expert evidence was that a micro-sleep lasted from 1 to 10 seconds and the subject might not recall it. Further there was the witness evidence that prior to the sudden panicky reaction there had been nothing wrong with the claimant’s driving. Taking all the factors into account and balancing one argument against the other, the claimant had shown on a balance of probabilities that he fell asleep and that was the cause of the accident. The judge was wrong to find otherwise. However, the claimant had to bear some responsibility — at some time, albeit a short time before the accident — he must have realised the risk of falling asleep. But he was in that predicament because his employer had put him there and had done nothing to guard against the risk of injury from which he ought to have been saving his employee. The claimant’s overall contributory negligence should be assessed at 33%.
MOORE-BICK LJ and SIR MARTIN NOURSE agreed.
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