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Matinca v Coalroc (No 5) [2022] NSWSC 844 (30 June 2022)

Last Updated: 1 July 2022

JUDGMENT

1. The plaintiff, Mr Troy Matinca (“Mr Matinca”) claims damages from the defendant, Coalroc Contractors Pty Ltd (“Coalroc”) for serious personal injury he suffered at about 8:20 p.m. on Sunday, 17 April 2016 in a single-vehicle collision. Mr Matinca was the sole occupant, and of course, driver of the vehicle. He was travelling in a generally southerly direction on Macquarie Rd., Warners Bay, New South Wales, when at the end of a sweeping right-hand curve in the road his vehicle left the road way on its western side, colliding with a tree by an off-side side-swipe, re-entered, and crossed, the carriageway in a generally easterly direction colliding head-on with another tree located some 18 metres into the scrub from the edge of the carriageway, halting the vehicle. Mr Matinca was driving a blue Toyota Prado SUV. Below I have reproduced a diagrammatic representation supra-imposed on an aerial photograph of the stretch of road involved and depicting the two approximate impact locations. The diagrammatic representation is taken from the report of Mr Grant Johnston dated 28 November 2019 (Exhibit DCB, p. 124). Mr Johnston is an expert traffic engineer with qualifications in accident reconstruction:

2. Mr Matinca had to be cut from his SUV after a confinement of about 1 hour. His serious injuries included: a traumatic brain injury involving retrograde and post-traumatic amnesia (the latter for a period of about 18 days); fracture of the base of the skull; multiple facial fractures; a degloving injury of the right arm; a comminuted scapular fracture; non-displaced fracture of the manubrium; fractures to the spinus processes involving the T1, T4, T5, T6 and T7 levels; and pulmonary contusion (Exhibit E).
3. Subject to the resolutions of questions of liability and contributory negligence, quantum has been agreed in the sum of $1,615,403.26 (MFI 10).

The nature of the case

4. Mr Matinca was employed by Coalroc as an underground coal miner. He had worked for various employers as a coal miner since about 2004. Coalroc provided mining services under contract, including the provision of labour, to the operator of the Ulan West Coal Mine in the upper Hunter Valley. Mr Matinca was one of its coal miners whose labour was supplied under the contract. The Ulan West Coal Mine is an underground coal mine in the vicinity of the village of Ulan, about 45 minutes by road north, northeast of Mudgee.
5. Mr Matinca sues Coalroc for damages for breach of the duty of care owed to him by Coalroc as his employer. As Mr Matinca is a coal miner, being a worker employed in or about a mine, the amendments made by the Workers Compensation Further Amendment Act 2001 do not apply to him: s 282, Schedule 6, Part 18, Clause 3 Workers Compensation Act 1987 (“WCA”). That is, any common law right to damages for the consequences of the accident is modified by Divisions 2 and 3 of Part 5 WCA in the form they took immediately prior to the commencement of the 2001 amendments on 6 December 2001. It also means that the provisions of the Civil Liability Act 2002 (NSW) (“CLA”) do not apply to questions of liability and damages in this case: s 3B(1)(f) CLA. All questions of the existence, nature, scope and content of the duty of care, negligence and contributory negligence are to be applied by application of the general law. Damages would have been assessed in accordance with the applicable form of Div. 3 of Pt 5 WCA but because of the agreement of the parties no question arises about damages payable if Mr Matinca is successful on liability, subject to the apportionment of damages if Coalroc is successful in establishing its partial defence of contributory negligence.
6. The single vehicle incident in which Mr Matinca was seriously injured occurred about 259 kilometres from the mine, about 2 hours and 20 minutes after Mr Matinca left the mine precinct and while he was travelling to his home at Mt Hutton in Newcastle’s Lake Macquarie neighbourhood, a comparatively short distance from the accident site. Mr Matinca’s case is that the occurrence of his single vehicle incident was caused or materially contributed to by work induced fatigue occasioned by the nature and conditions of his employment with Coalroc and that the temporal or spatial scope of the duty Coalroc owed him in the circumstances extended to that occurrence. He says that Coalroc was negligent in failing to take available precautions to manage the risk of a fatigue-induced traffic accident on his journey home at the end of his “tour” of work over the weekend of 15, 16 and 17 April 2016.
7. Coalroc disputes these matters. First, it says that its duty ended when Mr Matinca drove his SUV out of what is referred to as the corporate road connecting the mine to the Golden Highway as he commenced his journey home. Secondly, it argues that even if fatigue was a relevant legal cause and its duty extended so far, it was not negligent given the procedures it had adopted to manage the risk. Thirdly, it denies that work induced fatigue was a legal cause of the occurrence and rather argues that I could not be satisfied on the balance of probabilities that a normal incidence of Mr Matinca’s journey home, such as speed or driving conditions, had been excluded as the cause. Fourthly, it argues, if Mr Matinca is otherwise successful, his damages must be reduced by a considerable measure by reason of his failure to take reasonable care for his own safety on the journey home. These then are the issues.

Agreed facts

8. The following facts are agreed between Mr Matinca and Coalroc:

(a) Ulan West Operations Pty Ltd, no longer a party to the proceedings, was the operator and occupier of the mine.

(b) Coalroc was engaged by the operator to supply underground mining services.

(c) Mr Matinca commenced employment with Coalroc at the mine in or about February 2016.

(d) During his employment with Coalroc Mr Matinca was assigned to perform underground mining work at the mine.

(e) While working at the mine Mr Matinca was subject to the direction and control of both the operator and Coalroc.

(f) Mr Matinca’s usual place of residence was at Mt Hutton, New South Wales.

(g) The distance between Mr Matinca’s residence and the mine was approximately 270 kilometres.

(h) The plaintiff was employed to work on a weekend roster (“tour”).

(i) The weekend roster required Mr Matinca to work 3 shifts of 12 hours between 6 a.m. and 6 p.m., each Friday, Saturday and Sunday.

(j) During each shift Mr Matinca was allowed two, half hour crib breaks.

(k) Shift time includes travel in and about the mine as necessary to access his place of work and time for showering and changing toward the end of the shift.

(l) During the period of Mr Matinca’s employment, Coalroc had a Fatigue Management Procedure, which was applicable to Mr Matinca’s work at the mine.

(m) Mr Matinca completed each of his 12 hour shifts on 15, 16 and 17 April 2016.

(n) At approximately 6 p.m. (other evidence suggests 6:10 p.m.) on 17 April 2016, Mr Matinca commenced to drive from the mine towards his residence.

(o) At approximately 8:20 p.m. on 17 April 2016, Mr Matinca was driving along Macquarie Road, Warners Bay, New South Wales, when he was involved in a single vehicle traffic incident.

In relation to (l), the evidence establishes that the operator also had a fatigue management plan or protocol which Coalroc was contractually bound to observe in the supervision of its employees.

What happened and why?

9. It seems logical to commence with a consideration of the circumstances, and factual cause, of Mr Matinca’s accident. Unless he proves work-induced fatigue at least materially contributed to it, no point is served by giving other than general consideration to the other issues involved.
10. There is an immediate difficulty in resolving this issue. Because of the severity of Mr Matinca’s injuries, and in particular, the head injury, involving as I have said, both retrograde and post-traumatic amnesia, it is not in dispute that Mr Matinca cannot recall the circumstances of the accident (Evidentiary Statement 5 August 2019 [71]; Exhibit PCB 1). I formed the impression that he had no clear memory of leaving work on 17 April 2016 (84.22 - .42T). He “thinks” the last thing he remembers is packing up to go to work early that morning. He had no clear recall of even prior journeys to and from the mine during the six weeks or so that he worked there before the accident. I am not suggesting his retrograde amnesia was of such a long duration, rather he had no reason to recall specific features of previous journeys. He was asked a number of questions relevant to the week before his crash but was unable to answer in any specific way (120.23T – 121.7T). He was able to describe the route he followed because he always went the same way, there and back (118.35T).
11. It is obvious that Mr Matinca is unable to provide any direct evidence about what happened immediately before the incident or any explanation for it. It is necessary for him to rely upon circumstantial evidence and permissible inferential reasoning processes, if available, to prove the facts he needs to establish to make his case good on the balance of probabilities. Mr P.R. Cummings SC, who appeared with Mr P.K. Williams for Mr Matinca, reminded me of the principles of law relevant to proof by circumstantial evidence in civil cases discussed in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (“Bradshaw”) at 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ), Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 at 358 (Dixon, Fullagar and Kitto JJ) and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 304 – 305 (Dixon CJ). In Bradshaw, the unanimous Court stated:

“Of course as far as logical consistency goes many hypotheses may put which the evidence does not exclude positively. But this a civil and not a criminal case. The difference between the criminal standard of proof in its application to circumstantial evidence and to civil is that in the former the facts must be such as to exclude hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is merely a matter of conjecture: (citation omitted). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusions sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: (citation omitted).”

12. In Jones v Dunkel Dixon CJ emphasised that the onus lying upon the plaintiff in a civil case required the proffering of “evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind”. After a discussion of Bradshaw, his Honour continued (p. 305):

“...the law ... does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”

That the Chief Justice was in dissent as to the result has never stood in the way of the acceptance of the correctness of the stated principle.

13. With these principles in mind, I will turn to a consideration of all of the relevant circumstances established by evidence I accept.

Fatigue

14. It is not in dispute that the work of an underground coal miner is strenuous and tiring. Mr Matinca’s weekend shift involved long hours. In cross-examination, Mr Matinca described it pithily as follows (104.35T)

“When you’re doing 12-hour shifts, they’re obviously long days, especially at the face, you’ve got to add how long it took to get to work, for a start, before you even done (sic) the shift and then the shift length, then you’ve got to add the journey home. So, there are some long days in there, depending what mine site I was at.”

15. As I have said already, Mr Matinca’s “tour” required him to work a weekend roster involving 3, 12 hour shifts on each of Friday, Saturday and Sunday from 6 a.m. to 6 p.m.. According to his Evidentiary Statement of 5 August 2019 (Exhibit PCD A-1 – 41) on Thursday evening preparatory to reporting for work on Friday, Mr Matinca would go to bed at about 8 p.m. or 8:30 p.m. ([63]). He arose at 2 a.m. to leave for work. The journey may take around 3 hours and 15 minutes ([40]). He would sometimes stop for fuel or a quick breakfast, but mostly he would “simply drive through” ([41]). As no one else in his weekend crew lived nearby he would invariably travel alone.
16. When he arrived at the mine he would log on, subject himself to mandatory alcohol and drug testing, change into his work gear before attending the operator’s toolbox talk at 6 a.m., during which, inter alia, the work for the day would be discussed. His crew of 4 or 5 miners would then be conveyed to their worksite underground at the coal mine. Usually, the 2 prescribed crib breaks would be taken as one of one hour ([46]) at some convenient time in the day’s production cycle. At or about 6 p.m. Mr Matinca and his crew would return to the change room to shower and change before logging off and leaving the mine.
17. While on tour (an expression that Mr Matinca disliked because it was not one used by coal miners: 111.15T), Mr Matinca shared a cabin with one of his workmates at a caravan park in Mudgee, a 45-minute drive from the mine. Neither the operator nor Coalroc provided accommodation and those classified as “drive-in/drive-out” miners would have to make their own arrangements in Gulgong or Mudgee.
18. Drive-in/drive-out workers were those identified as travelling “from areas outside the mid-western region at the start and end of each tour” (Ulan West Underground Fatigue Management Procedure, Exhibit PCB 89 – 101, p. 97). It is implicit that workers in this category would stay in temporary accommodation in the area. I infer this, from the definition of “commute” which relates to “time spent travelling to/from site for each shift whilst on tour”. Mr Matthew Piscioneri, the Health, Safety and Training Manager employed by the operator at the mine, called in the plaintiff’s case, defined the mid-western region as anywhere within “100 kilometre radius from the site” (371.50T).
19. While staying in Mudgee Mr Matinca usually awoke at about 4:15 a.m. so he tried to get at least 8 hours proper sleep (109.25T), however, he accepted the time may vary “according to how tired he felt” but bearing in mind the time he had to get up at in the morning (110.50T – 111.5T). He tried to get “enough sleep so he could turn up fit for work the next day” (111.8T). Fitness for work was a concept emphasised in Coalroc’s Safety Health Management Plan (Exhibit PCD 1-88, pp. 37 – 38). It was the obligation of each individual to arrive at work, “fit for work”. Matters affecting this status included “fatigue, grief, stress and illness as well as drugs and alcohol” (p. 37). In cross-examination Mr Matinca was asked to give his own understanding of the meaning of the expression “turn up fit for work” (102.35T). He said:

“No drugs and alcohol were the main two, but you wouldn’t get on-site, anyway, because you have a blow in a breathalyser before you get on - get into the change rooms to get changed. Yes, obvious I, fatigue-wise, turn up alert, yeah.”

He agreed that coalminers need to make adjustments to their lifestyle “to make sure that [they’re] able to turn up fit for work” (102.44T). It was not suggested that Mr Matinca had an issue with alcohol (102.50T – 103.5T). Fatigue was the focus of the discussion. While he would make sure he got enough sleep to turn up fit for work, the time he retired might vary according to how tired he was from the day’s exertions (111.45T – 112.5T).

20. On the Sunday morning he would set the alarm on his mobile phone a little earlier to allow sufficient time for him to pack up for the journey home after his shift before leaving for work. His time-records show, for instance, that on Sunday 17 April 2016, he logged in at 5:48 a.m. for his 6 a.m. start (Exhibit PCB, pp. 120 - 121). I infer he left his accommodation at Mudgee at about 5 a.m..
21. He was familiar with the issue of fatigue in the coal mining industry from his own training, knowledge and experience (104.16T). And he was aware “about the role that driving may have in relation to fatigue” (104.21T). He said he was “an experienced miner and knew about fatigue in the industry” (105.23T). “Fatigue was part of all inductions” of which Ulan Mine was an example (105.13T).
22. Speaking of his usual practice, he did not rest in his car before driving home on any Sunday night because he felt like he could get home safely (113.25T). Mr Matinca made it quite clear that he would not contemplate returning to Mudgee at the completion of his Sunday shift to spend a night in his accommodation at his own expense (87.5 - .10T). He accepted that he may well have been then “fully refreshed” at the start of his journey back to Mt Hutton, and it was an “option”. But apart from the additional expense, I formed the impression that he regarded it as something of a waste of time to travel 45 minutes in the opposite direction from his home for the purpose of giving himself a longer journey on the Monday morning (88.5 - .35T).

The results of police investigation

23. An off-duty nurse, Ms Kasey Arkinstall, who was not an eyewitness, but who heard the sound of the collision attended the scene, tended to Mr Matinca as best she could and contacted emergency services. Police were dispatched at about 8:30 p.m. and when Constable Jason Welch arrived at the scene other emergency services, including ambulance officers, Westpac rescue paramedics and fire and rescue units were already present. As I have said, rescue personnel had to extricate Mr Matinca from his Toyota Prado, a process which took some time.
24. Neither Ms Arkinstall nor Const. Welch nor any other person at the scene in the immediate aftermath were required to give evidence. Const. Welch evidently undertook an inspection of the broader scene. From photographs taken the following day while the Toyota Prado remained in situ against the second tree, it is evident that he was able to locate and identify the first tree by reference to evident damage to its trunk, including the extensive removal of bark (Exhibit PCB pp. 302, 305 and 310). His original record was created at 4:05 a.m. on 18 April 2016 (Exhibit PCB p. 140). He recorded the incident as having occurred between 8:20 p.m. and 9:50 p.m. on 17 April 2016. He recorded the weather conditions as “raining/overcast” and the prevailing speed limit as “60 KPH”. I interpolate that both traffic engineers, Mr Nigel McDonald (Exhibit PCB, p. 68) and Mr Grant Johnston (Exhibit DCB, p. 115), state that the speed limit at the time of the incident was 70 kph. One might normally defer to the information provided by a police officer familiar with the locality, but Mr McDonald has provided a detailed footnote 1 setting out apparently reliable confirmatory material. On this occasion, I prefer the evidence of the experts.
25. From his observations Const. Welch provided a narrative of events which is not in dispute. His opinion as to the cause of the accident was objected to and rejected by me. From his inspection of the scene and the physical evidence his narrative is as follows:

“About 8:20 p.m. on Sunday 17 April 2016 [Mr Matinca] was in control of vehicle 1, a blue Toyota Prado 1990 Registration .......

Vehicle 1 was travelling in a [generally southerly] direction along Macquarie Rd., Warner’s Bay before [Mr Matinca] lost control, resulting in vehicle 1 crossing onto the incorrect side of the road before leaving the sealed road and clipping a tree.

As a result of vehicle 1 clipping a tree, vehicle 1 has ricochet (sic) back onto the correct side of the sealed road before travelling in a [generally easterly] direction into scrub land before vehicle 1 collided head on into a tree.”

As I have said, there was no dispute between the parties who each have had the benefit of the consideration and opinion of a relevantly qualified traffic expert, that Const. Welch’s narrative is consistent with the available physical evidence, such as it may be.

26. I should also say that Const. Welch recorded that he had attended Mr Matinca’s home address at about 10 p.m. on the same day “in order to notify next of kin” who in this case was Mr Matinca’s father, Mark Matinca about the incident. Mr Matinca Snr. informed Const. Welch that, “his son had just finished three 12 hour shifts over 3 days at his place of work in Mudgee before driving approximately 3 hours home”. Mr Matinca Snr did not give evidence but, again, this part of Const. Welsh’s narrative was admitted without objection. While one could be pernickety and consider Mr Matinca Snr’s representation to be hearsay because it is strictly reliant upon what his son had told him at some stage about his place of work, his hours of work and his travelling time working for Coalroc, there is no dispute about those facts. But it is important to record here what Mr Matinca Snr said because of other matters relied upon by Coalroc in another document of which Mr Matinca Snr was a primary source.
27. Police photographs of the Toyota Prado and the general scene (Exhibit PCB pp. 288 – 314), show that the roof of the vehicle had been peeled back and the off-side, or driver’s side, doors had been cut away to extract Mr Matinca. But apparently there was sufficient evidence of the condition of the panel work for the traffic experts to agree that the accident-related damage sustained was consistent with a sideswiping type of collision with the first tree which was important in explaining how the Toyota Prado came to “ricochet” across the carriageway into the scrub opposite before colliding with the second tree.
28. Photographs also depict the extensively damaged front end of the Toyota Prado wrapped around the second tree, about centrally. The degree of deformation including indentation of the second tree into the panel work on the front of the vehicle enabled calculations to be made permitting an estimate of impact speed from which, having regard to distance travelled to both points of impact, extrapolations were able to be made of the approximate speed of the Toyota Prado at the point of Mr Matinca’s loss of control, although there was a degree of disputation between the experts about the conclusions the physical evidence supported. I will return to this when dealing with their evidence.

Other accounts

29. Over the objection of Mr Cummings, I admitted into evidence the narrative contained in a workers’ compensation claim form signed by Mr Matinca Snr on 28 April 2016 and Mr Matinca on 27 June 2016 (Exhibit 3). I also allowed certain other information contained in the Motor Accidents Notification Form signed by Mr Matinca Snr on 13 May 2016 (Exhibit DCB pp. 403 – 408). I admitted Exhibit 3 on the narrow basis provided for by s 87 Evidence Act 1995 (NSW) requiring a court to admit evidence of an admission if it is reasonably open to find that a party made an admission. My full reasons for admitting Exhibit 3 are set out in Matinca v Coalroc (No 2) which will be published with this principal judgment. Essentially, I held that at the point of receipt of the evidence in any event, it was open to hold that Mr Matinca’s signature of 27 July 2016 ratified his father’s account provided on his behalf for the purpose of claiming workers’ compensation.
30. The Accident Notification Form falls into a different category. It is not countersigned by Mr Matinca so the argument about the possibility of it being treated as an admission did not arise, but a second part of the narrative contained in that document appeared to me to be admissible under s 69 Evidence Act because although Mr Matinca Snr was not called by either party, the content of the second part of his description appeared to me to be matters about which it may reasonably be supposed that Mr Matinca Snr has personal knowledge of the facts asserted. My full reasons for admitting the document were set out in Matinca v Coalroc (No 3) which will be published with this principal judgment. The admissibility of the second statement is also relevant to the admission of a Council work order (Exhibit DCB p. 209, documenting heavy patching work on a stretch of Macquarie Road on 10 May 2016 to which I will return). It too is the subject of a separate interlocutory judgment published with these reasons.
31. The narrative contained in Exhibit 3 is in the following terms. I should say before reciting it, that although in appearance Exhibit 3 could be construed as the work of at least 2 hands, Mr Matinca gave evidence that his father is ambidextrous and all of the handwriting appearing, other than his own signature, was his father’s. This evidence was not challenged. Mr Matinca Snr therefore wrote, I accept:

“Driving home from work lost control of car in slippery wet conditions, side swiped one tree then slammed into another tree.”

32. The portion of the narrative in the accident notification form which I admitted is in the following terms:

“This section of (rejected) road has since been repaired and resurfaced three weeks after this accident”.

33. Mr McCulloch SC, who appeared with Mr D Stanton for Coalroc, argued that the account of Exhibit 3 is inconsistent with Mr Matinca’s case in as much as it ascribes the cause of his loss of control to “slippery wet conditions”, rather than “work induced fatigue”. As there may be concurrent causes for an incident one or more of which may be due to the defendant’s negligence and others not, the asserted inconsistency does not exclude legal liability if the cause or causes attributable to a defendant’s negligence materially contributed to the harm in respect of which a plaintiff’s claim is made.
34. While I admitted Exhibit 3 on a limited basis, I am not satisfied that the narrative written by Mr Matinca Snr is a reliable account even if Mr Matinca’s later signature is a “ratification” of his father’s account. It is quite clear that Mr Matinca, genuinely, has no actual recollection of what happened. I repeat his last recollection appears to be packing up his accommodation between 4 and 5 a.m. on 17 April 2016. His father was not an eyewitness, and it is not suggested that he was. It is not disputed that he first heard of his son’s accident when Const. Welch called on him at home at about 10 p.m. on 17 April 2016. At that time, he could know nothing about what happened other than what might have been said to him by Const. Welsh, who himself was not an eyewitness. Of course, for what it is worth, the information relayed by Mr Matinca Snr. to Const. Welch is consistent with Mr Matinca’s case of “fatigue” and indeed more consistent with that than any other hypothesis ventilated in the case to explain the accident.
35. I am prepared to accept that the narrative in Exhibit 3 is technically an admission because it is a statement which Mr Matinca seems to have adopted by his signature, which is against his interest. An admission is admissible regardless of the party’s actual knowledge of the true facts. However, this does not make it a reliable account. Evidential admissions rarely constitute conclusive evidence. The probative force of an admission may well depend upon the party’s actual knowledge: Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71 at 143 - 4, Rich, Dixon, Evatt and McTiernan JJ. In circumstances where neither Mr Matinca nor his father can give any direct evidence about what happened and why from his own perceptions, I do not regard the statement, even if it is as Mr McCulloch submits, as reliable, and I will put it to one side. On the other hand, Mr Matinca Snr.’s statement about the section of road being “repaired and resurfaced” after the accident does appear to me to be reliable, especially when read in connection with other relevant evidence, including the works order I have referred to and the evidence of Mr Johnston.

Was the road repaired?

36. On 12 October 2020, the solicitors for Coalroc issued a subpoena to the Lake Macquarie City Council, the local government authority responsible for the road area where Mr Matinca’s accident happened. Amongst the documents called for were the following:

(1) “Any correspondence requesting road repairs received by RMS or made by RMS for the period 1 January 2013 to 31 December 2018 in respect of [Macquarie Rd, Warners Bay New South Wales, from the intersection of King and Medcalf Streets to John Street].”

37. Among the documents produced is a “RMCC – Work Order” (Exhibit DCB, p. 409) for work done on 10 May 2016 involving “heavy patching MR527 Macquarie Street, Warner’s Bay 2 100 MM heavy patches on sweeping corner eastbound down lane causing cars to shutter over bumps”. There is no evidence as to what “shutter” means in this context. There is no evidence that it is a technical term of art. It may be a misprint of “shudder”, as Mr McCulloch argued, but I need not resolve that question one way or the other. It is enough to understand that it is persuasive evidence that a section of Macquarie Rd in the vicinity of the curve where the loss of control occurred was heavily patched on 10 May 2016. Probably, it was not extensive work given it was completed in a single day. The work seems to have involved two, 100 mm patches. I take the 100 mm to be the thickness of the patches.
38. As I have said, Mr Grant Johnston is the expert traffic engineer qualified to give evidence on behalf of Coalroc. His first report dated 28 November 2019 is Exhibit DCB pp. 88 - 156. Mr Johnston conducted a view of the incident location in November 2019. Although having observed in his first report (Exhibit DCB p. 108) that the roadway was in good condition at the time of his view and that historical photographs suggested the same at the time of the incident, Mr Johnston also said (p. 114) that while the southbound lane appears in good condition, the opposing northbound lane at best was in “a fair condition with a number of irregularities and defects”. He notes an “allegation” that the pavement may have been resurfaced and with respect, speculates that this involved the southbound lane, “if it was in similar condition to what I observed in the northbound lane”. It seemed to me that there was patching evident in Mr Johnston’s photographs, figures 5.4 and 5.8, always bearing in mind the natural limitations upon the capacity of the trial court to treat photographs as though they were real evidence and the caution that must be exercised in interpreting photographs without the assistance of eyewitness explanations of what they depict.
39. Mr McDonald did not mention resurfacing in his first report of 19 January 2018 (Exhibit PCB 2, p. 57ff). However, in his second report (Exhibit PCB 2, p. 104), he agrees that some resurfacing may have occurred mainly because aerial images of the site show segments of the southbound lane appear to have been marked for resurfacing as of 4 May 2016 and then resurfaced as of 6 October 2016. This seems to dovetail with the evidence provided by the work order. It does appear by the time of their joint report of 4 May 2021 (Exhibit PCB 2, p. 36ff), while the experts disagreed
    “as to the lower bound of the likely friction on the road surface”, they did agree that the road surface had been resurfaced prior to either of them having attended the site (p. 139, (xii)).
40. I accept on the balance of probabilities that resurfacing of the road by way of thick patching occurred on or about 10 May 2016 as stated in the work order. This is consistent with Mr Matinca Snr’s observation recorded in the traffic accident notification form. I also accept the reference to “bumps” in the work order form and that the presence of bumps on the carriageway may affect its efficiency as a means of passage for motor vehicles travelling at the speed limit, or perhaps even more so, the design speed as explained by the experts. This must be so whether or not “shutter” is a misprint of “shudder”.
41. In general terms, the significance of the resurfacing or patching from the point of view of the experts is what it might say about the actual condition of the surface of the road in the affected areas at the time of the incident. This in turn is relevant to the issue of friction, or traction between a vehicle’s pneumatic tyres and the road surface on a sloping section of roadway, perhaps especially when wet. While one may accept Mr McDonald’s opinion that resurfacing “is ... not an indicator of a pavement traction deficiency”, per se, the information contained in the work order is certainly indicative of an irregularity on the surface of the road. On the balance of probabilities, I accept that there was such a “deficiency” in the vicinity of the curve. There is certainly no evidence of any “cluster” of accidents on the curve at about this time due to any pavement irregularity or deficiency. No one is suggesting that the curve should be regarded as any kind of accident “blackspot”.

The opinion of Dr Desai

42. Dr Anup Desai is a legally qualified medical practitioner practising as a specialist respiratory and sleep physician. His report of 25 June 2019 was admitted as Exhibit PCB 2 p. 32ff. In his report Dr Desai said “driver fatigue” is a general term. Its manifestations including “drowsiness, sleepiness, impaired vigilance and inattention as well as falling asleep”. It is a well-recognised cause of motor vehicle accidents. He identified a number of risk factors: driving at a time of physiological sleepiness; the presence of a sleep disorder; the influence of drugs; and driving for long periods without rest. None of these risk factors as defined strictly apply to Mr Matinca, although one could understand that a person who had worked the hours Mr Matinca did over the previous three days may fall into a category of “physiological sleepiness” even if the hours during which he was driving home did not fall into typical time zones.
43. Dr Desai explained the features of fatigue related accidents in the following terms: (Exhibit PCB 2, p. 40 [24]):

“Fatigue related road accidents frequently share common features. They often involve a single vehicle running off the road with no evidence of braking or other preventative action before an accident. An absence of braking before an accident suggests a lack of attention, which may be due to sleep or sleepiness in a fatigued driver. The accident often occurs on a high-speed road and the driver is alone in the vehicle. Other causes are eliminated e.g. mechanical defect, speeding, excess alcohol, bad weather.” (Citations omitted.) (Emphasis added.)

44. Dr Desai explained that sleep is essential for normal organ function and life. Sleep deprivation leads to an increase in the drive for sleep. Although the effect of sleep deprivation varies from person to person a progressive decrement of performance and increased likelihood of falling asleep “with progressive hours of sleep deprivation exists in all individuals” (PCB 2, p. 41 [26]). Sleep deprivation may result in reduced alertness, mood changes and decline in motor and cognitive performance. Peer reviewed literature suggests moderate levels of fatigue produce higher impairment “than the prescribed level of alcohol intoxication”. Sleep deprivation may also increase risk taking behaviour. In a study of long-distance truck drivers results suggested “that extended work hours, together with reduced break time, were major factors causing the drivers sleepiness” (p. 43 [36]).
45. Dr Desai was of the opinion that the circumstances of Mr Matinca’s accident suggest driver fatigue “and that he fell asleep”. This was on the assumption his accident involved a single vehicle running off the road; no evidence of braking or other evasive action; the accident occurred on a high-speed road; Mr Matinca was alone in the vehicle; and other causes have been eliminated or regarded as far less probable (Exhibit PCB 2, p. 45 [44]). Naturally this expression of opinion depends upon the assumptions Dr Desai has made according with the evidence I accept. The principal consideration from Dr Desai’s point of view was that “Mr Matinca’s work and sleep routine in the days leading up to the accident created a fatigue propensity as a result of sleep loss or sleep deprivation”. Dr Desai was of the view that Mr Matinca’s level of driver fatigue was likely to have been high at the time of the accident. The propensity for fatigue began after arising early on the Friday morning and he became progressively and cumulatively partially sleep deprived by his routine over the next three days until finishing his third 12-hour shift at 6 p.m. on Sunday 17 April 2016.
46. Ameliorative measures including a short nap of less than 30 minutes immediately before or during his journey home would have reduced his driver fatigue.
47. Given his schedule and the restricted opportunity for adequate sleep it allowed, “[a] reduction in work hours and travel time ... and closer accommodation to work for the Friday and Saturday nights would all have allowed greater opportunity for sleep ... and therefore would have likely reduced his sleep restriction and subsequent driver fatigue on the final journey home”.
48. A reduction in fatigue would have improved Mr Matinca’s physical and mental functioning resulting in “improved ... concentration, reflexes, ability to drive and ability to assess his ability to drive” (Exhibit PCB 2, p. 49 [56]).

Cross examination

49. Dr Desai agreed that if the assumptions he had been asked to make had changed he may “need to revisit [his] opinions” (233.35T). Dr Desai agreed that there are individual variations on the need for sleep and “sleep drive” is part of human physiology leading a person to sleep when an appropriate level of fatigue has been reached (233.47T).
50. He was not of the view that education about fatigue through a work-based policy would increase awareness of a person’s fatigue levels when they were away from work. Dr Desai said (234.35T):

“...I'm not convinced individuals can assess fatigue adequately in terms of fitness for work. So even if there is a fatigue program, they may not be able to judge their level of fatigue.”

He did agree that work-based education may make it more likely that a person would “monitor their need for sleep whilst they were on rotation” (235.15T). Dr Desai considered that the quality of sleep was as important as the hours during which one sought sleep (236.5T). While he acknowledged that consciousness of the need to have “accurate sleep” (an expression of Mr Matinca’s) was indicative of him responding to sleep drive, he repeated that in his opinion individuals do not well assess how much sleep they need (236.34T). Notwithstanding individual variation, physiological principles relating to sleep drive and sleep homeostasis “give us good ideas of how much sleep people need on a day-to-day basis” (236.45T). I took this to be a reference to an objective rather than subjective standard.

51. Dr Desai did not accept that the consideration that Mr Matinca had driven home safely on each of the previous “five or six” Sunday evenings was “a very important indicator of Mr Matinca’s capacity to perform in terms of fatigue while he was driving” (239.45T). People will drive fatigued and not have an accident. “If an accident occurs in the setting of fatigue ... you have to just look at the individual circumstances around that period”. That Mr Matinca “objectively did not feel tired as he left each Sunday to begin the drive” was relevant as past behaviour and past experience (240.28T). He did not accept that Mr Matinca’s subjective assessment of his ability to drive was determinative, as I understood his evidence (240.45T). He accepted the consideration that Mr Matinca “felt he would get home safely” was relevant to some extent, but there is the question about a person’s self-assessment of awareness of his level of fatigue (241.4T).
52. Dr Desai said that he did not use the conclusions of police about the cause of the accident as the basis of his own opinion about the relevance of fatigue (242.20T). Dr Desai accepted that “those same broad parameters” that he had referred to in his report as “characteristic of a fatigue related accident” would be equally applicable to a speed and inattention accident (244.50T). They would also be consistent with “a speed only accident” (245.3T). Dr Desai assumed that the “road surface was [not] a contributor (247.13T). He accepted that the condition of the road surface, especially if it was “slippery and wet” “would have some relevance” (247.34T). He accepted that it was a feature of fatigue related incidents on a curve, that the driver fails to take the curve and drives straight ahead (247.44T). While he accepted that a loss of control leading to a collision with a tree on the right on a right-hand bend was indicative of driver input he added (at 247.50T – 248.4T):

“But I don't think it's necessarily one or the other. You can have, you know, impaired - impaired sort of lane deviation, loss of control that comes as a result of fatigue rather than actually falling asleep which is the more common scenario where there's lack of evasive action. So periods of drowsiness can lead to poorer control which could fit your scenario.” (Emphasis added.)

He accepted the objective circumstances of a collision, a loss of control leading to a sideswipe collision with a tree on the right and then a head-on collision with a tree on the left were indicative of a loss of control which is nothing to do with fatigue. He accepted it was indicative of loss of control, but he would not go so far as to say it had nothing to do with fatigue (248.25T). It was necessary to determine why Mr Matinca lost control, I infer before fatigue could be excluded (248.35T).

53. Dr Desai accepted that if the speed limit was 60 kph or 70 kph he would not consider Macquarie Rd to be a high-speed road. He has no expertise in excluding other explanations for a single vehicle collision from consideration. That is to say, he did not have the expertise to assess mechanical defects, speed or alcohol (249.10 - .37T).
54. In re-examination, Dr Desai confirmed that his answer (248.35T) to the effect that one would need to determine why Mr Matinca lost control was premised on the consideration that “fatigue is a potential cause of loss of control” (251.3T).

The evidence of the traffic experts

55. As I have indicated, each of Mr McDonald and Mr Johnston provided a principal report and a supplementary report, mainly commenting upon the principal report of the other. Mr Johnston considered that the available objective facts supported a conclusion that Mr Matinca’s Toyota Prado was travelling at least at the speed limit of 70 kph “and probably more”. While the cause of the initial loss of control was unknown “speed, the wet road and fatigue were all possible factors either individually or in combination”. He disagreed with Mr McDonald’s conclusion that fatigue was the “likely cause” because all of the circumstances did not meet the criteria for such a car crash in accordance with the requirements of the New South Wales Crash Data Base, I infer maintained by RMS. He also considered that Mr McDonald should not have eliminated speed as a cause or contributing factor without first calculating the likely or possible speed range. In his second report, Mr Johnston adhered to the opinions already expressed, and the criticisms made of Mr McDonald’s approach. He added his results of a survey of Mr Matinca’s likely route from the mine to the crash site that Mr Johnston undertook indicating that on the known temporal limits of Mr Matinca’s journey from the mine to the crash site he must have travelled at about 20 kph above the average speed for the journey involving at times exceeding the speed limit.
56. In his first report, Mr McDonald concluded that it was not possible to determine the speed at which the Toyota Prado was travelling when it departed the road and struck the first tree. He considered the circumstances indicated that Mr Matinca successfully negotiated the right-hand curve but failed to adjust his steering on departure from the curve, which Mr McDonald considered was consistent with fatigue being a primary or sole contributing factor. While accepting the circumstances did not align exactly with each and every indicator of fatigue related crashes, they did with “most indicators”. He found no indicators of other contributory factors.
57. In his second report of 18 February 2021, Mr McDonald adhered to the opinions he had previously expressed, notwithstanding his consideration of the contents of Mr Johnston’s first report.
58. It is not necessary to further consider the reasons for the differences, such as they are, between the opinions expressed by the experts as in accordance with the Uniform Civil Procedure Rules 2005 (NSW) and the usual practice of the Court, Mr McDonald and Mr Johnston conferred on 29 April 2021 producing a joint report dated 4 May 2021. From the joint report, as so often happens when conscientious experts meet to discuss their differences, significant agreement was obviously reached and the remaining areas of disagreement between them were fully explained. Indeed, there is much more agreed between them than disagreed. The joint report is part of Exhibit PCB 2 (p. 136ff). Although lengthy (but not prolix), I think it appropriate to set out in full the matters upon which Mr McDonald and Mr Johnston reached agreement concerning collision dynamics, the potential role of driver fatigue and the potential role of vehicle speed as follows:

“Collision Dynamics

The experts agree that:

(i) The Plaintiff's vehicle (herein 'the vehicle') came to rest against a roadside tree on the eastern side of Macquarie Drive (the second impact ). The vehicle was likely travelling in the order of 26 to 32 km/ h at the time of the second impact;

(ii) Prior to coming to rest, the vehicle crossed from the western to the eastern side of Macquarie Drive;

(iii) On the western side of Macquarie Drive, the vehicle had earlier struck a roadside tree (the first impact). The change in speed during the first impact was in the order of 20 to 30 km/h;

(iv) The estimates of change in speed from vehicle damage are limited by the experts' ability to quantify damage based on the perspective of images supplied and that within the overall damage some of the specific damage was either masked or created by extrication activities;

(v) The vehicle's path between tree impacts was defined in aerial photographs by disturbance to roadside plants and grasses within the eastern road shoulder (but there was no evidence identified across the sealed roadway);

(vi) The path to the first impact Is not defined by physical evidence we have been provided such as a disturbance in the roadside grass or marks on the sealed roadway;

(vii) Whilst there is no physical evidence along the path to the first impact, based on the almost sideswipe nature of damage to the front offside of the vehicle, and the aspect of the tree that shows damage, it is likely that the vehicle's approach was on a path from the vicinity of the southern end of the nearby right horizontal road curve;

(viii) It is likely that the vehicle crossed the road centre in the vicinity of the southern end of this curve;

(ix) It is agreed that the vehicle deviated from the southbound lane. The mechanism and cause of this deviation is the subject of further discussion;

(x) Other than the speed at impact with the second tree, it is not possible to calculate the speed of the vehicle accurately or reliably at any point along its path other than to determine a range of possibilities based on making a number of assumptions.

Potential Role of Driver Fatigue

The experts agree that:

(i) There is no quantifiable measure of fatigue involvement in this incident;

(ii) There are indicators of the possibility or likelihood of fatigue involvement.

(iii) The effects of fatigue can present differently in different incidents, with or without the contribution of other factors, such that the fatigue indicators are not a definitive measure of fatigue involvement.

Potential Role of Vehicle Speed

The experts agree that:

(i) Other than the speed at impact with the second tree, it is not possible to calculate the speed of the vehicle accurately or reliably at any point along its path other than to determine a range of possibilities based on making a number of assumptions;

(ii) The Plaintiffs speed at other times in the overall journey and whether they were above the speed limit do not of themselves indicate his speed at the time he arrived at the incident location;

(iii) Calculation of average speed relies on assumptions for the departure time from the Plaintiff s workplace, and the arrival time at the incident site;

(iv) The arrival time at the incident is known to an extent due to reports of a witness hearing the incident, attending to the incident and notifying emergency services;

(v) The departure time has been assumed as 6pm for the purpose of calculations based on the reported finish time, with the specific departure time unknown;

(vi) In terms of travel time based on signposted speed limits, and adopting Mr Johnston's inventory survey, the journey time between the workplace at Ulan West Mine and the incident site would be 2 hours 39 minutes. This is 19 minutes longer than the 2 hours 20 minutes assumed based on a 6.00 pm departure and 8.20 pm incident time;

(vii) Police records appear to indicate a call was received at 8:29 pm, at which time the details were unknown other than the sound of a collision (caller Hayden Callan). A further call was received at 8:32 pm providing incident details (caller Kasey Arkinstall);

(viii) If the Plaintiff travelled at a speed uniformly around 10% higher than the signposted speed limit, the journey would be completed in close to 2 hours 20 minutes;

(ix) Travel times are typically variable due to the effect of other traffic and road conditions, and also variability in individual driver's approach to cornering;

(x) One travel time survey run can provide an indicator of travel times, but does capture the variability that can occur although Mr Johnston notes that in high service conditions there is minimal traffic related variability;

(xi) The potential for loss of control whilst cornering is influenced by the level of available friction (traction);

(xii) The experts have a disagreement as to the lower bound of the likely friction on the road surface. The road surface has been resurfaced prior to both experts attending the site;

(xiii) The curve radius was agreed to be around 210 metres;

(xiv) Adopting a coefficient of friction of around 0.6g, as proposed by Mr McDonald equates to a critical speed of 127 km/h. Adopting a coefficient of friction of around O.5g as proposed by Mr Johnston equates to a critical speed of 115 km/h;

(xv) The above speeds apply the lower bounds of traction considered likely by each expert, and higher traction will be associated with higher critical speeds.

(xvi) Travel at the critical speed would likely lead to loss of control, but does not exclude loss of control at speeds below the critical speed.”

59. Drawing attention to the difference between Mr McDonald and Mr Johnston about the likely lower end of the range of the co-efficient of friction of the surface of the roadway, as discussed under the heading “Potential Role of Vehicle Speed” at xiv) and xv) above, it is clear to me that the potential significance of this relates to the speed at which a vehicle would lose traction and run off the road without the need for any other causal factor coming into play. This is referred to as the “critical speed”. The differences between the experts, which again need not be resolved, produce a range of 115 kph to 127 kph. I acknowledge it cannot be both. However, it is clear that neither Mr Johnston nor Mr McDonald suggest that either speed is in play in the present case. That is to say, neither expert is of the opinion that Mr Matinca’s accident occurred because he attempted to drive the Toyota Prado through the curve at a speed in excess of the critical speed, lost traction and ran off the road for that reason alone. As paragraph xvi) of the same section of their joint report makes clear, identification of the critical speed for a curve “does not exclude loss of control at speeds below the critical speed”, I infer, taking into account such other relevant factors as may be established by the evidence.
60. The differences between the experts relate to the potential role of driver fatigue, on the one hand, and the potential role of vehicle speed, on the other, notwithstanding that they agree on certain aspects of factors relevant to both of those questions. In the joint report each expert adheres to his previous opinion about the potential role of driver fatigue. Mr McDonald opines that it is likely to be the primary or sole causal factor based on “published fatigue indicators” and the absence of indications that other causes are involved. Mr Johnston adheres to his view that fatigue cannot be “isolated as the primary causal factor” but is “at best” one of a number of contributing factors, including speed and roadway conditions.
61. Concerning the potential role of vehicle speed, Mr McDonald accepts that it is possible in accordance with Mr Johnston’s opinion, that Mr Matinca drove through the curve at a speed of 10 to 20 percent higher than the 70 kph speed limit, even though there is no physical evidence to support this conclusion. Such a speed would be in the range of 77 to 84 kph. Significantly, a speed in that range would produce lateral acceleration in the range of 0.22 to 0.26g, which is within the guidelines stipulated in Rural Road Design, Aust Roads (1989). This is described as “a comfortable lateral acceleration of 02.6g at 80 kph” by the authors of the manual. Accordingly, a speed of 77 to 84 kph is around the design speed for the curve, which is not signposted with a contrary warning sign or advisory speed sign. This design speed allows “for comfortable and safe travel” (Exhibit PCB 2, p. 140). Mr McDonald is of the view that the absence of indicators of speed as a likely contributor, whether alone or in conjunction with prevailing weather conditions, indicate fatigue as the likely primary and potentially sole causal factor.
62. In Mr Johnston’s opinion, travel at or within either of the critical or design speed “for a corner, intersection or any other type of traffic facility does not eliminate speed as a factor” along with other possible or contributing factors. He opines that the majority of crashes probably occur within the design speed of a facility “but... a combination of circumstances, including the possibility of speed for the conditions, would result in a loss of control and a collision”.
63. Mr Johnston says in his experience, horizontal curves of the type involved in the case at hand are “grossly overrepresented in crash statistics as locations for clusters of crashes and rarely are those crashes where motorists have travelled at such a speed to exceed the critical and in many cases even the design speed of the corner”. Single vehicle collisions are mostly multi-factorial involving “some sort of error in driver input which may be for a variety of reasons such as momentary inattention which has led to a loss of control and a collision”. Rarely is it the case that a single factor was the primary cause in the sense of being “more than 50 percent responsible for the causation of the incident” (Exhibit PCB 2, p. 141).
64. Rather than looking at the potential factors in the abstract, he is of the view that the loss of control here involves “an apparent oversteer to the right on a right curve followed by what appears to be some sort of rapid movement to the left at the first impact over and above what would be the expected rebound path given the shallow nature of the impact”. Mr Johnston regards this as more typical of a speed related loss of control than a fatigue incident. In a fatigue incident it is more likely that Mr Matinca would have failed to negotiate the curve and the Toyota Prado would run off the road to the left rather than the right. During the concurrent evidence of the experts, Mr Johnston explained the reason why in a fatigue incident the vehicle would run off a right-hand curve to the left rather than the right (291.35T):

“... and fatigue can manifest itself in a whole lot of ways, but it would have to be a type of fatigue where there was no relaxation. You know if you doze off or anything like that you tend to release the steering. So, it would have to be something that maintained the pressure to keep that steering active on the scenario that [the Toyota Prado ran off the right-hand curve to the right].”

Cross examination by Mr McCulloch SC of the experts

65. Under cross-examination of by Mr McCulloch, Mr Johnston said there was no direct evidence of a stereotypical fatigue crash, but he could not eliminate as a possibility that there was some element of fatigue involved (288.27T). He explained the absence of evidence of a particular loss of control mechanism made it difficult to ascribe an explanation to that phenomenon amongst a number of options which may be available, including fatigue. The physical evidence really commences with the collision with the first tree (288.40T).
66. Mr McDonald accepted that the consideration that the Toyota Prado crossed to the wrong side of the road was “a strong indicator of driver input” in the sense that the driver steered to negotiate either part or all of the curve. But in Mr McDonald’s view that did not suggest anything about speed as an explanation for the loss of control, given that the speed was manifestly below the critical speed for the curve (289.35T). Mr McDonald regarded the stereotypical fatigue collision as “a failure to follow the road environment” (289.45T). Mr McDonald said that a driver can actually negotiate the curve, but at some point in that curve, the effect of fatigue may play out by the driver failing to respond to a prompt, such as the prompt provided by the end of the curve. If that occurs the driver may continue to steer through the curve, in effect, oversteering and running off the wrong side of the road (290.5T).
67. In adhering to his view that speed, i.e. excessive speed in the conditions, was a factor Mr Johnston relied upon the results of his survey of the route undertaken for the purpose of his supplementary report. Those results, he said, are “at least suggestive [of an] element of speed being a factor” (291.3T).
68. Mr McDonald explained that fatigue was a failure in cognitive processes which did not necessarily involve the driver falling asleep. It may involve a failure to detect something or to perceive or react to something. It doesn’t necessarily mean the driver is going to “fall limp on the steering wheel” (292.15T). “They’re simply going to fail to process that thought or to detect something”. One of the factors that Mr McDonald relied upon in positing this opinion was the absence of evidence of significant yawing of the vehicle before its collision with the first tree (297.10T). The technical definition, apparently, is a turning of the vehicle relative to its path of intended travel. It involves a loss of traction where “a vehicle starts to slip, so that it’s partly travelling sideways towards the direction [of travel] up to the extreme point where a 90-degree yaw would be that it’s sliding perpendicular to its travel path” (298.5T). Mr McDonald agreed that from the absence of photographs “it’s not apparent ... that the policemen undertook a survey of the roadway” (298.10T). I understood this to be looking for marks or tell-tale signs on the roadway indicating the movement of the Toyota Prado toward the first tree (298.15). Given the supra-elevation of the curve of about 3.5 degrees, although the point where the Toyota Prado crossed the centre line cannot be determined precisely, lateral acceleration and the degree of super-elevation would have tended to move it toward the right side (300.1T). Mr McDonald said his fatigue hypothesis depended in part upon the absence of evidence of yawing, which is contra-indicative of an excessive speed event (300.10T).
69. Mr Johnston emphasised that the absence of physical evidence on the surface of the road meant “we don’t know if it went into a yaw” or not (300.15T). From the pattern of accident damage, the angle of collision between the vehicle and the tree was known. But there was no evidence from which one could determine what happened between the point of loss of control and the collision with the first tree.
70. Mr McDonald thought there was evidence of an absence of yawing provided by the crash scene photographs of the Toyota Prado’s tyres. These photographs showed an absence of earth or grass on the sidewall of the tyres which would be evidence of yawing as the vehicle left the tarred surface of the roadway if it had been yawing toward the tree (Exhibit PCB 1, pp. 294, 296, 298, 299; 301.40T). Mr Johnston did not agree. In his view, a vehicle in a slight yaw would not dig up grass, unlike a vehicle which is sliding sideways and rolls (302.34T). He also pointed out that the first tree was quite close to the edge of the tar providing little opportunity for the deposit of soil and grass on the tyre sidewalls (303.5T).
71. Mr Johnston summarised his position in the following way (303.30T):

“I say the overall crash is more consistent with a speed event. I accept what Mr McDonald says that the shallow angle of the impact may be some indication that it could be - that fatigue might be a consideration. I think the overall pattern of loss of control is a speed event, but ... it's more normally a shallow angle off the other side of the road, but a shallow angle is characteristic of fatigue. In this case it's to the wrong side, in my opinion, and that's why I say it's more likely a speed-related event.”

Mr McDonald adhered to his view, he agreed that “more information would assist”, but he considered that the available information was sufficient for him to express his opinion (304.5T). Mr Johnston generally agreed with what Mr McDonald had said but added (304.10T):

“To be definitive, we need more information. We're in the position where, you know, if we're sitting around a room looking at this crash, we'd have different opinions. We'd put it aside and probably come back to it. It's one of those where there are arguments for both sides, and there's no elimination, in my opinion, for either scenario.”

72. Mr Johnston also explained that the government data base was concerned with the analysis of a large number of cases for the purpose of identifying the need to fund safety campaigns in specific areas. This was a very different purpose from deciding on available evidence whether the cause of one crash could be determined. “That’s not really the way the criteria was set up (sic)” (305.10T).
73. Both experts agreed with the proposition that the totality of the evidence available “is consistent with momentary inattention” (305.50T – 306.5T). And both agreed that for the Toyota Prado to travel from tree 1 to tree 2 “there had to be some steering input”, as “the rebound angle is not natural” (307.15 - .40T).

Cross examination by Mr Cummings SC

74. It was agreed by the experts that the difference between them was whether the initiation of the loss of control which led to the first impact was, on the part of Mr McDonald, a notional continuation of the previous curve due to fatigue factors or from Mr Johnston’s part a mistaken oversteer to which speed, fatigue and road conditions may have contributed (308.10 - .45T).
75. Mr Johnston had factored into his adoption of a lower co-efficient friction than Mr McDonald the consideration that the roadway was wet and may have been in need of repair (309.29T).
76. Mr Cummings established that in effect there were only two scenarios consistent with the available evidence. The first was that the vehicle slid out of control in the vicinity of the south end of the curve and continued to slide across the carriageway until it collided with tree 1. The second scenario is that due to fatigue, Mr Matinca failed to straighten the steering wheel at the end of the curve driving toward the tree. So far as scenario 1 was concerned, Mr Johnston said that the initiating loss of control involves an input by the driver, and it can involve inattention as well as speed in the conditions (310.45T – 311.5T).
77. Mr Johnston accepted that collisions involving a curve of the type in question are commonly a consequence of a combination of factors including an element of speed, and an error in driver input such as momentary inattention which leads to a loss of control and a collision. Fatigue can be included as a factor (311.10T – 312.15T). The error in driver input typically arises as a consequence of misjudgement including inattention and a sudden realisation that a correction is required whether by way of braking or steering (312.35T). Mr Johnston agreed that the types of error in driver input “arising from misjudgement, inattention, sudden correction ... are all ways in which fatigue can manifest itself ... and commonly does” (312.43T – 313.1T). To the extent to which a loss of traction may be involved, even below critical speed, a yaw, which Mr Johnston described as “a rotation about the vertical axis”, may be initiated involving a slide across to the right (313.25T). Mr McDonald added that if a yaw is produced and the vehicle is turning in a different direction from that intended, the driver may have to make “potentially quite sudden changes to correct the change in orientation” (313.35T).
78. The experts agreed that Mr McDonald’s figure 4-5 (Exhibit PCB 2, p. 76) accurately illustrated the pattern of damage to the off-side of the Toyota Prado which the experts considered was sustained in its interaction with the first tree (315.30T) (see below). The experts agreed that the pattern of damage showed evidence of some rotation of the vehicle when it collided with the first tree (315.43T). The pattern of damage was also consistent with a degree of counter-clockwise yawing as it hit the tree so that the vehicle is sliding along the tree and its angle is changing relative to the tree (316.25 - .40T). The pattern of damage suggests a “shallow angle collision between the Toyota Prado and the tree” (317.30T). When the Toyota Prado made contact with the tree there was a slight yaw or perhaps some steering input (318.18T). Mr McDonald said from the description teased out in Senior Counsel’s questions by reference to the pattern of damage, the first collision was “more consistent with scenario 2 than scenario 1” (318.26T).

79. By reference to the alignment of the Toyota Prado to the tree depicted in Mr Johnston’s report (see (c) above), Mr Johnston said (at 319.50T – 320.5T):

“...if it was off the left-side with a shallow angle, I agree that it would be more indicative (of fatigue). Being on the right-side, as I said earlier, a shallow angle is an indicator of driver fatigue [but] usually off the left side. I can't say that it didn't coincidentally end up a shallow angle as a result of loss of control, or that it was always only a shallow angle because we just don't have that evidence.”

80. Mr Johnston accepted that Mr McDonald’s figure 5-3 showed that it’s possible that the collision with the first tree could be explained by Mr Matinca maintaining the same line as he had appropriately steered through the curve after it ended and the road straightened (see below). However, he thought that was inconsistent with the driver being asleep because to maintain the line shown, the driver would need to maintain pressure on the steering wheel (320.44T – 321.43T). Mr Johnston accepted, as an aspect of fatigue, a driver may “nod off momentarily without necessarily becoming limp” (322.13T). This is consistent with what’s referred to as a “microsleep” being a “momentary, almost instantaneous loss of consciousness and then adrenalin ... wakes you up” (322.26T). Mr Johnston also agreed with Mr McDonald that fatigue may manifest itself in “a momentary absence of alertness” rather than complete unconsciousness (322.38T). On the trajectory depicted in Mr McDonald’s figure 5-3, the distance between crossing the centreline and hitting the tree is 54 metres involving “two and a bit seconds” which Mr Johnston regarded as “longish for what we’re calling a microsleep” but not out of the question (323.37 - .50T).

81. Mr Johnston said that fatigue is a statically significant factor, particularly in single vehicle rural motor vehicle accidents (324.38T). In addition to other aspects of fatigue, a fatigued driver may have difficulty recognising, regulating and maintaining a consistent speed or adapting the speed for particular conditions (325.35 - .40T). Reference was made to public awareness campaigns including the “stop, revive and survive” campaign in New South Wales. The experts agreed that taking a break after two hours behind the wheel was a common value and indeed modern vehicles were programmed to display a sign suggesting a break after two hours of continuous driving (324.45T – 325.20T).

Decision on the cause of Mr Matinca’s motor accident

82. I bear in mind the authorities I have referred (at [11] – [12] above) concerning the application of the civil standard of proof in cases like the case at hand that depend wholly upon circumstantial evidence. I remind myself that it is for Mr Matinca to prove that the circumstances appearing from reliable evidence raise a more probable inference in favour of his case. It is necessary that the circumstances proved give rise to a reasonable and definite inference. It is not sufficient that they give rise to conflicting inferences of equal degrees of probability. If the circumstances proved make it reasonable to find a balance of probabilities in favour of the conclusion Mr Matinca seeks, “although the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise”: Bradshaw at 5.
83. Having reviewed the evidence in what I regard as some detail, I am left with the impression that there is a surprising amount of reliable evidence for the objective determination of what happened in the collision. Although there is an absence of evidence demonstrating exactly where the Toyota Prado crossed the centre line of Macquarie Road which is the first point at which a loss of control is clearly established, this does not render the forensic competition between scenario 1 and scenario 2 a mere matter of choosing between guesses. The evidence is not in the condition where I am left with a choice between two available inferences of equal probability. In accordance with Bradshaw, I accept that the inability of the evidence to positively exclude competing possibilities is not of itself inconsistent with a discharge by the plaintiff of the onus of proof which lies upon him and to the standard required. Where direct proof is not available, as here, it is enough that Mr Matinca proves circumstances appearing from evidence I actually accept which support as a definite inference the finding for which he contends.
84. I am satisfied that fatigue had a real part to play in the causation of the accident. I am not satisfied it was the only factor involved in Mr Matinca’s loss of control. I am more persuaded by Mr Johnston’s opinion, with respect, than Mr McDonald’s, on this occasion. Looking at the whole of the evidence which I have accepted, I do not think it can be said that fatigue is the only relevant causative factor providing the “why” to the “what” of the occurrence. I interpolate the evidence clearly establishes “what” happened. I am not persuaded that Mr Johnston’s analysis supporting his multi-factorial approach of a combination of relative speed, road conditions and fatigue does no more than identify possibilities which cannot be excluded. His resistance to the idea that a fatigue related accident would involve running off the road to the right of a right-hand curve really depends upon treating the effects of fatigue as requiring actually falling asleep at the wheel resulting in a complete relaxation of Mr Matinca’s grip on the steering wheel. As his own evidence acknowledges, this is only one possible manifestation of fatigue among a myriad of possible symptoms affecting a driver’s control of the motor vehicle.
85. With respect, I am of the view that the experts have approached what might be categorised as the question of factual causation in a restricted manner by which they have looked to see whether the objective evidence identifies a salient factor which can be described as the primary or sole cause. In terms of primary cause, from the joint report, it seems that the standard the engineers may have been applying was a single factor which yields greater than a fifty percent contribution to the occurrence of the accident. This, of course, is not the legal standard which I must apply in the application of the law of negligence to the circumstances proved to my satisfaction on the balance of probabilities by evidence I actually accept. The common law test for legal causation for the purpose of the law of negligence is to ask whether work induced fatigue suffered by Mr Matinca caused or materially contributed to the occurrence of the accident. This is really part of the ultimate question of whether the negligence of the defendant caused or materially contributed to Mr Matinca’s injuries. But given the nature of the issue about what happened and why, it is necessary, for the moment, to focus upon whether Mr Matinca has proved to the civil standard facts which will support the case in negligence he brings if questions of duty, breach and legal causation are determined in his favour. The factual cause of the accident is an essential intermediate step in Mr Matinca establishing civil liability in Caolroc.
86. I will now detail the circumstances which I find have been established by evidence I accept. First, Mr Matinca was fatigued at the start of his journey home. I am not of the view that any other conclusion is reasonable on the evidence. There is no dispute that underground coal mining work is hard physical work and Mr Matinca performed three, 12 hour shifts, totalling 36 hours of that hard work in 3 days. I accept that Mr Matinca is a sensible man of sober habits, but this does not gainsay the naturally tiring effect of hard physical labour. I am not of the view that this impression is dispelled by Mr Matinca’s self-assessment on prior occasions that he “felt he could drive home safely”. The annals of motor accidents are filled by the testimony of drivers who said, “I thought I was right to drive”. Moreover, as Dr Desai made clear one’s self-assessment of fatigue provides at best a shaky compass. The objective considerations are a much more reliable guide. Also as Dr Desai stated, especially when one is living away from home over a short period, the quality of sleep is more important than the hours spent in bed. I accept that Mr Matinca was sensible about getting to bed early given his work program, but from this it does not follow that he was unaffected by his labours at 6 p.m. on Sunday 17 April 2016 as he contemplated the drive home to Newcastle. I think this is obvious from Mr Matinca’s acknowledgment that had he chosen to spend Sunday night in the Mudgee region, he would have been “fully refreshed” when he commenced an albeit longer journey on the Monday morning.
87. Secondly, on the topic of fatigue, I accept it can manifest itself in a variety of ways short of actually falling asleep at the wheel. These manifestations include a lapse in concentration such as momentary inattention, a misperception of the path of the roadway ahead, drowsiness, sleepiness and impaired vision. It may lead to errors of judgment as the traffic experts accepted including in the matter of poor speed regulation of one’s vehicle appropriate to the driving conditions. As Dr Desai said in cross-examination, a person is not either asleep or awake. An accident may be contributed to by a loss of control that comes as a result of fatigue rather than actually falling asleep. And, of course, he said in re-examination that “fatigue is a potential cause of loss of control”.
88. Thirdly, I consider it of some significance that the accident happened not far from Mr Matinca’s home on a section of roadway with which he was likely to be very familiar. It seems to me much less likely that some other factor than fatigue would account for a loss of control which seems to have occurred on the logic applied by both of the traffic experts toward the end of a sweeping right-hand curve. Fourthly, the geometry of the curve does not seem of itself to present any challenge to the alert driver. The bituminous carriageway of the curve, consisting of a single lane in either direction, was generous and was governed by a general speed limit of 70 kilometres per hour, not subject to any specific warning or other traffic advisory sign recommending a lesser speed through the curve. Fifthly, while I accept generally Mr Johnston’s reckoning that the speed of approach to the point of loss of control was probably 70 kilometres per hour, or somewhat more to an unspecified degree, it must be borne in mind that this is an estimate only. It is an estimate only because it is a calculation, upon which the experts generally seem to agree, drawn from the degree of deformation of the front bodywork and the degree of intrusion of the second tree into it yielding a range of impact speeds of 26 to 32 kilometres per hour after 20 to 30 kilometres per hour had been lost during the first impact. The calculation is not precise. I am well-satisfied that Mr Matinca was driving comfortably within the design speed for the curve, notwithstanding a tendency to have travelled in excess of the speed limit throughout the journey from the mine to the accident site, according to Mr Johnston’s survey.
89. Sixthly, I accept that in places, the southbound carriageway on Macquarie Road was suboptimal, being affected by bumps that interfered, as I have already found, with its efficiency as a means of passage which constitutes part of the relevant driving condition that Mr Matinca had to accommodate. I do not accept that one can conclude from Mr Johnston’s inspection three and a half years later that the southbound lane generally was in only the fair condition that Mr Johnston assessed the northbound lane to be in in November 2019. Obviously in general terms one may safely postulate a roughly equivalent vehicle load in each direction. But many other factors must affect the rate and pattern of wear on a given stretch of road. It is enough to say that there is direct evidence that the southbound lane was affected in a manner I have described.
90. Seventhly, I accept that the road was wet and this too was a condition, perhaps in combination with the irregularities on the surface of the road to which I have referred, which would have reduced the traction available to a vehicle approaching the increasingly downward slope at the end of the curve. As Mr Cummings’ cross-examination elicited, a combination of the bumps and the wetness on and of the surface of the road was the reason why Mr Johnston estimated the co-efficient of friction of the surface at a lower level than Mr McDonald.
91. Without going over all of the evidence I have summarised above, I am satisfied that Mr Matinca’s single vehicle collision was caused by a combination of factors including speed, the prevailing driving conditions and momentary inattention caused by fatigue. Of these I think fatigue the most significant.
92. I do not regard the driving conditions presented by the bumps on, and wetness of, the surface of the road or the speed of Mr Matinca’s approach of about 70 kilometres per hour, or even somewhat more, either individually or in combination, to provide the explanation for the obvious loss of control he experienced towards the end of the right hand curve immediately prior to colliding with the first tree. As I have already said, there is no evidence of a cluster of accidents on this curve when the road was wet or dry. There was no suggestion it is an accident “blackspot”. There is nothing in the evidence to suggest that the “bumps” that were patched on 10 May 2016 had caused or were capable of causing of themselves a loss of control, whatever “shutter” in context means. Given the evidence about critical and design speeds, I am not of the view that an approach speed even of as much as say 80 kilometres per hour explains the loss of control, as I have said, even in combination with the driving conditions. Mr McDonald positively says neither the driving conditions nor the speed were factors. Mr Johnston accepts there had to be a third factor, which he has always said possibly could be fatigue. From the outset he posited a combination of factors of speed, driving conditions and fatigue and he has adhered to that opinion throughout his involvement in the case.
93. With great respect, even Mr McCulloch added a third factor in his approach to cross-examination of the experts being inattention, momentary or otherwise. And, of course, as I have already pointed out, momentary inattention may be a manifestation of fatigue.
94. In general terms, the missing and in my view, necessary factor, is an explanation for Mr Matinca’s loss of control which is not provided of itself by his speed of approach or the driving conditions or both. While I am not entitled to speculate or guess, I am of the view that all of the circumstances proved by the evidence I accept point to fatigue as being the most likely factor explaining Mr Matinca’s loss of control. I accept that I am not dealing here with a scenario where Mr Matinca has actually fallen asleep so that his muscles have completely relaxed and his grip on the steering wheel has been released. I accept Mr Johnston’s evidence that such a phenomenon would have led to the vehicle leaving the roadway to the left and not the right.
95. In my view the circumstances of the accident are otherwise inconsistent with Mr Matinca having fallen asleep completely. It is obvious that, at the very least, there was driver input at or about the time the Toyota Prado collided with the first tree. In my judgment, that probably occurred a split second before that first collision. That steering input was probably to the left which accounts for the Toyota Prado crossing the carriageway as it did and colliding head on with the second tree. During the collision with the first tree there was a loss of speed in the range of 20 to 30 kilometres per hour and there may well have been some braking as Mr Matinca had refocused his attention so that at the point of the second impact his speed had reduced to the range agreed upon by the traffic experts of 26 to 32 kilometres per hour.
96. Taking the crossing of the centre line as indicative of the approximate point of loss of control, there were a little over two seconds available to Mr Matinca while his vehicle covered the 54 metres to the point of impact with the first tree. Allowing for a slowed reaction time due to fatigue as he refocused his attention, the input of a left turn of the steering wheel in an attempt to avoid the tree could only have occurred a very finely, split second before the impact.
97. I also infer that the relevant loss of control, as Mr McDonald posits, consisted of Mr Matinca, through inattention, mistaking the alignment of the road and continuing on the same radius as the curve, bringing him towards the tree. I have already said that he was probably very familiar with this stretch of road. That probably made a mistake less likely. At the same time, inattention is inattention, and in his fatigue-clouded judgment he made a mistake that he would not ordinarily have made.
98. I accept the facts as I have found them to be on the probabilities do not fit in neatly with the criteria adopted by statisticians to identify fatigue related accidents. As Mr Johnston explained, these factors are identified for the purpose of categorising accidents which can be ascribed primarily or solely to driver fatigue for the purpose of devising accident prevention measures by way of public education. In applying the law of negligence, I am not concerned with the application of rigid or arbitrary categories devised for the separate purposes of other disciplines. Having said that, the facts as I have found them to be are not wholly out of kilter with the “common features” that Dr Desai ascribed to “fatigue related road accidents” (see [43] above). Mr Matinca’s accident did involve a single vehicle running off the road with no evidence of braking or other preventative action including steering until it was too late immediately before the impact with the first tree. The absence of any evidence of evasive action to that point suggests a lack of attention, which I accept may have been due to sleepiness in a fatigued Mr Matinca. Although the accident did not occur on a high-speed road as defined i.e. one in which the speed limit is 80 kilometres per hour or more, Mr Matinca was alone in the vehicle. I have eliminated other causes: there is no suggestion of mechanical defect; there is a suggestion of speed for the conditions, but not of itself sufficient to account for the accident; there is no alcohol whatsoever involved; and while the road was wet the evidence does not suggest that the prevailing weather falls into a category of bad weather sufficient in itself to cause a loss of control, such as very heavy rain or thick fog.
99. I am satisfied on the balance of probabilities that Mr Matinca’s work induced fatigue caused his car accident as one of a combination of factors which also included his speed of approach and the condition of the road. Were it necessary to say so at this stage, I am of the view that while fatigue may not properly be called a sole cause, it certainly constituted a very substantial, material contribution to the occurrence of the accident.

The nature and scope of the duty of care

100. In Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873, a unanimous High Court of Australia expressed the duty of care owed by an employer to its employee in the following terms:

“The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgement by the employee in performing his allotted task.”

Statements to the same effect can be found in cases of high authority too numerous to recount or even cite. It is perhaps, however, useful to bear in mind that to contrast the duty owed by a principal to an independent contractor, a unanimous High Court of Australia said of the employer’s duty in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [21]:

“An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injuries to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.”

101. I acknowledge that to state the duty in these terms says little about the temporal or spatial scope of the duty. No one would say that once established and during its currency the relationship of employer and employee subjects the employer to a duty of care owed to the individual employee at all times regardless of the nature of the activity the employee is undertaking. Coalroc says that where, as here, Mr Matinca was engaged to work at a fixed location at the mine, the duty it owed him began when he entered the curtilage of the mine in the morning and ended when he left it in the afternoon after completion of his shift. It did not extend to his journey to temporary accommodation at Mudgee or while he was at that place. And it certainly did not extend to his journey home to Newcastle after he left the curtilage of the mine on the completion of the third shift of his weekend tour at about 6 p.m. on each Sunday.
102. To make good this argument, Caolroc relied on the judgment of Kitto J in ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372; [1864] HCA 26 (“Boczulik”) at 378 – 379. It is not necessary to set that long passage out in full. Kitto J limited the temporal and spatial scope of the duty to injury to an employee “in the course of [the] employment”. His Honour said the course of the employment “is not a narrow conception. It extends beyond the period of work to every situation to which the master sustains the character of master to the servant”. His Honour said such a situation may exist after the servant has left his place of work at the end of the day and “even in a case where the servant is exercising his right as a member of the public to pass along a public highway, for he may be performing an errand for his master or travelling to or from his place of work in a manner provided for by an express or implied term of the contract of employment” (emphasis added).
103. But Coalroc in particular lays emphasis upon this passage:

“On the other hand, it is clear that where the servant is using the highway simply as a means of getting to or from his place of work in such circumstances that the journey is either preliminary or subsequent to, and not in the course of, the employment, the master, as such, owes him no duty of care. The point to be observed is that the question upon which the existence of the duty depends is not in what character has the servant the right of passage, but whether the master is master in relation to the journey.”

It is clear that although the question is one of law, it is also fact-sensitive depending upon all of the circumstances of the case and the totality of the particular employment relationship between the employer and employee in question.

104. Coalroc also submitted that a justification for the stringency of the employer’s duty of care depends upon the employer’s right to control the performance of the employee’s work and to direct him or her to go in harm’s way in circumstances over which the employer can exercise control. But there is no justification for “extending” the scope of the employer’s duty to Mr Matinca’s journey home when Coalroc had no capacity to control the route taken or the manner in which Mr Matinca drove his car: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [98].
105. Coalroc also argued that to permit it to purport to exercise control over Mr Matinca’s conduct after he left the mine at the completion of his shift would be inimical to Mr Matinca’s right of personal autonomy including his right of freedom of movement, which would be contrary to fundamental values the common law tended to support.
106. While these considerations are important, they are hardly absolute or fixed. So far as the employer’s power of control is concerned, Mr Matinca referred to McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60. The plaintiff worked for a local authority’s waste contractor as a garbage man collecting garbage from bins left out by residents at the kerb side. A team of men ran along with a moving refuse truck picking up the bins and emptying them into the truck. It was known to the employer that the men would work both sides of the road at the same time with some of their number running across to the opposite side to collect a bin there and return it to the truck for emptying to avoid the need to collect the garbage on the opposite side in a separate pass of the same street. This was convenient for the men because it had the tendency to reduce their hours of work by speeding up the process of garbage collection. The plaintiff was struck by an oncoming car while crossing the road in furtherance of this “system”. The High Court held it was no answer to say that the employer could not control the conduct of its men while they were out working on the public street. The plurality of Mason, Wilson, Brennan and Dawson JJ said (at 311):

“In [this] situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence (citation omitted). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations, the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.”

107. So far as the rights of the individual are concerned, there are many situations, including employment situations, where an individual may find it advantageous to bargain away an aspect of individual freedom to obtain other, including employment, benefits. Many public servants agree not to undertake second jobs, at least not without the employer’s approval, for the purpose of safeguarding the reputation of the employer. Many employees accept restrictions upon how they spend their time away from work either because they are on standby or call or because the nature of the work requires that they report “fit for work” at the commencement of their shift. The evidence here disclosed that Mr Matinca was subject to such an obligation. Professional sportsman may be contractually bound not to engage in other dangerous recreational activities in their spare time lest they suffer injury rendering them unfit to provide their sporting services to their employer. While the rights of the individual are important, they are not an absolute and are not a bar to the exercise by an employer of its power “to prescribe, warn, command and enforce obedience to its commands”: McLean v Tedman (at 313).
108. Mr Matinca pointed out that the duty for which he contends is not novel. In an early English case of Tunney v Midland Railway Company [1866] UKLawRpCP 13; (1866) LR 1 CP 291, a worker travelling home from work on his employer’s train, as he was required to do by his contract of service, would have recovered damages for injuries suffered in a collision with another train but for the defence made available to the employer by the doctrine of common employment (now abrogated by statute) because the injuries were occasioned by the negligence of a fellow employee in moving the points on adjacent tracks.
109. In Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273; [1935] HCA 29 (“Jury”) (referred by Kitto J in Boczulik) the dependents of a worker killed by a passing train at night after his work had finished and as he was accessing a campsite in which he was required to stay while working away from home recovered damages under the Compensation to Relatives Act 1897 (NSW). The employer controlled the campsite, the railway line and presumably the railway operations carried out on the line. The employer’s liability lay in the failure to provide a safe means of access to and egress from the campsite. Rich and Dixon JJ said (at 280):

“It thus appears that the Commissioner accommodated the men with a camp as a condition of the employment. No doubt the men were not obliged to live in it, and when living in it had complete liberty of action outside hours of labour. But it remains true that in camping the men on railway premises, the Commissioner was acting under the contract of service, and in dwelling there the deceased was responding to the demands of the employment”.

Their Honour’s considered that by providing accommodation on his premises for the deceased to occupy in his capacity as an employee, “the Commissioner incurred to the deceased a duty of reasonable care for his safety”.

110. I would also point out that in Boczulik the plaintiff recovered damages from her employer for serious personal injury suffered on her way home from work when she fell into a large hole while crossing land adjoining the employer’s workplace to access a public road to catch a bus home. The verdict was upheld by majority by the Full Court of the Supreme Court of New South Wales, and by the High Court of Australia. Kitto J inferred that the employer had an arrangement with the owner of the private land permitting the former’s employees to pass on their way to and from work. On this basis, the plaintiff was crossing the private land “in the character of an employee of the defendant”.
111. Principally, Mr Matinca relies upon the decision of the Supreme Court of Queensland in Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 (“Kerle”), McMeekin J. The case appears to be one directly in point in as much as Mr Kerle was a drive-in, drive-out coal miner working at the Norwich Park Mine situated some 430 kilometres from his home in Monto, Queensland. He suffered serious injury in a single vehicle collision in which he was the sole occupant and driver on his way home after completing a “tour” of four consecutive night shifts of 12 hours duration at the mine. The journey ordinarily took about 5 hours. There are some factual differences. Mr Kerle’s accident happened in daylight. Conditions were dry and visibility was good. While negotiating a gentle bend, Mr Kerle suddenly veered onto the right-hand side of the road colliding with a railing and then a concrete wall.
112. With respect, McMeekin J treated the case as one falling into the category identified by French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 316; [2011] HCA 11 at [22] as one where “the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care”. The recognised relationship was the relationship of employer and employee. French CJ and Gummow J referred to the “inherent danger” in such a case of looking “first at the cause of damage and what could have been done to prevent that damage, and from there, determine the relevant duty, its scope and content” (at [19]).
113. Although McMeekin J considered that in travelling long distances to and from the mine, Mr Kerle was “in a sense” responding to the demands of his employment, borrowing the phrase from Rich and Dixon JJ in Jury, his Honour did not apply Boczulik. His Honour said (at [107]):

“Mr Kerle was not on the highway in his character as servant. His employer was not exercising any control over him as his employer ... some additional factor must be relied on here for Mr Kerle to succeed in his submission.”

114. His Honour distinguished Mr Kerle’s case from that category of case referred to in Boczulik where the employee is using the highway simply as a means of getting to and from his place of work and not in the course of his employment by reference to four factors, or perhaps salient features of the relationship between Mr Kerle and his employer. McMeekin J expressed and explained his four factors in the following way ([109] – [112]):

“The first is that it is the employer, and those like HMP, who have created the risk by the insistence on consecutive 12 hour night shifts with its consequent, and inevitable, fatigue. The risk thus emanates from the work activities. The risk of injury on the drive home is appreciably greater than it would otherwise have been but for the fatigue consequent on those activities.

The second is the matter previously mentioned — that expert studies on the impact of fatigue have long shown that the worker's subjective experience of fatigue is not necessarily a reliable guide to the individual's capacity to function safely. In other words the worker might think that they are fine but they are not. The worker is relevantly vulnerable.

The third is that the workforce must perforce come from places remote from the mine site — long distance commuting was inevitable. In a survey conducted in March 2008 nearly one-half of those who responded travelled more than three hours to get to the Norwich Park mine site. As noted above the worker is responding to the demands of his employment.

The fourth is that the only practicable way of minimising the risks thereby created required a response from persons in control of the workplace and work systems. To adopt the phrase used by Heydon JA that I have quoted, I am satisfied to “a high degree of certainty that harm will follow from lack of action” from the defendants.”

The reference to “the phrase used by Heydon JA” (at [112]) by McMeekin J is a reference to Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn) v Ashrafinia [2001] NSWCA 243 (at [66]) where Heydon JA (as his Honour then was) said:

“To be rendered liable for having created a source of danger, of course, is to be rendered liable for more than mere inaction. Indeed the category of ‘special circumstances’ or ‘a special relationship’ can obviously overlap with cases where liability is found because of ‘a high degree of certainty that harm will follow from lack of action’.”

115. Coalroc point out that I am not bound by McMeekin J’s decision; that the modern rule of judicial precedent in Australia’s national judicial system identified in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (at [151] – [152], [135]) and C.A.L No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 at 411 [49] – 413 [51] does not apply as between the decisions of judges sitting at first instance. I am of the view that this submission is correct. Intermediate courts of appeal sit in a very different position in the national judicial hierarchy, notwithstanding our federal system, from first instance judges. As I understand it, it has always been the law that first instance judges are not bound by decisions of their colleagues except to the extent to which they find the reasoning persuasive or follow and apply the previous decision for reasons of comity.
116. Accepting that I am not bound by McMeekin J’s decision, no decision of an intermediate court of appeal or the High Court of Australia has been drawn to my attention which has disapproved of, or is by necessary implication inconsistent with, McMeekin J’s analysis. With respect, I agree with his Honour’s analysis and would apply it to the present case.
117. I should say that in Mr Matinca’s case, I would have been inclined to regard him as undertaking his journey home to Newcastle “in his character as a servant”, to borrow (and apply) Kitto J’s phrase. In expressing this view, I have had regard to the consideration that as a term of his contract of service Mr Matinca was bound by Coalroc’s fatigue management procedure, the scope of which extended beyond his fixed hours of work to cover his travelling time as a drive-in, drive-out worker living outside the mid-western region as defined (see Agreed Fact (l) [8] above).
118. The fatigue management procedure is a document of some significance because it demonstrates that the risk of serious fatigue related injury was recognised by Coalroc. It establishes that the type of injury I have found befell Mr Matinca was reasonably foreseeable for the purpose of determining the existence, nature and scope of the duty of care and for the purpose of the breach analysis in due course if the duty extends to the risk which materialised during Mr Matinca’s journey home. Any question of whether a work induced fatigue injury during Mr Matinca’s journey home was reasonably foreseeable is answered in the affirmative by the fatigue management procedure: Kozarov v Victoria [2022] HCA 12 at [27] – [28], Gageler and Gleeson JJ. The fatigue management procedure also demonstrates that Coalroc sought to control the relevant risk not only at work but also while drive-in, drive-out workers were travelling from work at the end of their tour, and while other workers were commuting within the mid-western region.
119. In accordance with the reasoning of the High Court in McLean v Tedman I am in any event of the view that the practical difficulty of exerting actual control over the conduct of a worker including Mr Matinca, while actually on the journey home is no answer bearing in mind an employer’s authority to command. Nor is an employee’s personal autonomy a valid objection. As I have tried to demonstrate, the obligations arising under a person’s contract of service freely entered into will often intrude upon and limit the employee’s personal autonomy even while the employee is away from work and enjoying free time. The “fit for work” stipulation to which Mr Matinca was subject was part of his contract of service with Coalroc and by necessary implication fell into this category.
120. Although this may be part and parcel of McMeekin J’s fourth factor, as Coalroc’s fatigue management procedures and those of the mine operator extend beyond work hours and the workplace they evince an assumption of responsibility for managing the risk of work induced fatigue injury beyond the workplace and the hours of work and covering the journey to and from work.
121. I am satisfied that the duty of care of Coalroc to its employees, including Mr Matinca extends beyond Mr Matinca’s hours and place of work to his journey to and from work at least so far as the risk of work induced fatigue injury is concerned. The duty is, of course, in accordance with the formulation of an employer’s duty generally to see that reasonable care is taken to obviate that risk.

Additional evidence relating to the fatigue policy

122. It is apposite to set out some additional evidence relating to the fatigue policy. Fatigue is a matter covered in Coalroc’s Safety Health Management Plan (Exhibit PCB 1, pp. 1 – 88) and in the Mines Fatigue Management Procedure (Exhibit PCB 1, pp. 89 – 101).
123. As was the subject of cross-examination of Mr Matinca, Coalroc’s document (p. 11) states: it “recognises that fatigue, illness and alcohol or drugs can potentially affect the safety of persons in the workplace”; it requires its employees to “present fit for work and work in a safe and healthy manner”; and it also adjures them to “monitor lifestyle issues so that they do not impair their “fitness for work”, an obvious potential encroachment into an employee’s personal autonomy. In the section of the plan specifically dealing with “fitness for work” (section 18.0, p. 37) there is a repetition of the consideration that fatigue, inter alia can result in reduced fitness for work. The document points out that employees have obligations under occupational health and safety legislation to ensure safety at work. Section 18.3 (p. 38) identifies that “the risk associates with work activities/processes ... may result in fatigue. These include but are not limited to: work shifts and schedules, journeys to and from work and the type of work activity being undertaken”. It limits the hours that may be worked to 60 per week. Consecutive working days must not exceed 14. The maximum hours per day will not exceed 14, “including the journey and from work”. There is a minimum 10 hour break between shifts except with the prior approval of the project manager.
124. The mine’s procedures applied to “all Employees, Contractors and visitors” to the mine (p. 91). The purpose of the procedures include “minimising risks associated with fatigue”. The procedure “also establishes acceptable hours of work and the process for managing affected by fatigue”. Work related risk factors were identified and personal related risk factors (p. 92) include excessive travel/commute time to and from work (necessary). The maximum “work hours (inclusive of commute) were prescribed as “up to 14.5 work hours” in context, per day, a little more than by Caolroc’s plan. It was a requirement that individuals who “drive-in/drive-out” at the start and the end of shift tours were required to submit a personal travel management plan for review by the individual’s manager setting out the “controls” the individual will implement to ensure they present fit for work and not fatigued. The plan also was to ensure that the individual does not present an increased risk to themselves or others whilst at work “or travelling” (p. 93).
125. I should point out that there is no doubt that, as arose out of his cross-examination, Mr Matinca was inducted in the mine’s requirements when he commenced at the mine on or about 3 March 2016 (Exhibit PCB 1, p. 104) and the induction specifically covered fatigue at work and travelling. A questionnaire was required to be completed by Mr Matinca at the conclusion of that aspect of the induction, which he successfully completed (see e.g. p. 108).

Additional evidence from Mr Piscioneri

126. In his statement of 23 October 2020 (Exhibit G), Mr Piscioneri stated that his team was responsible for, inter alia, the implementation of the fatigue management procedure involving making personnel at the mine, including contractors aware of the requirements of the procedure through the induction process. The hours of all workers including contractors, such as Coalroc’s employees was monitored by what is referred to as the “DAMSTRA Computer System” which automatically generates alerts when excess hours are entered into the system by employees. These alerts are followed up with the individual involved.
127. Travel time is also monitored through the personal travel management plans. Mr Matinca was required to acknowledge the need for these plans as part of his induction.
128. I interpolate that in his evidence, Mr Matinca said he had not seen the travel plan, had not been asked to fill one in, but would have done so if required to (80.15T – 81.38T). But in cross-examination he was taken to the induction questionnaire he had been required to complete and he acknowledged that he had signified awareness of the need for drive-in/drive-out workers to submit an individual travel plan. This is something he knew from his experience of working in mines generally, but he added, “the employer submits one too”. His understanding was that Coalroc was supposed to supply it to him but did not (116.15 - .48T).
129. Mr Piscioneri said that Coalroc had access to Ulan’s intranet/share point which permitted them direct access to the mine’s safety policy and procedure documents on-line. Given Mr Matinca’s circumstances, Mr Piscioneri said that he was required to fill in an individual travel plan. Mr Matinca was paid a site allowance of $133.03 per day for travel and accommodation (Exhibit G, p. 6 [32]).
130. Mr Piscioneri attached a number of samples of individual travel plans to his statement (Annexure E, pp. 158 – 189). I admitted these documents not as to the truth of the representations contained in them, but as samples of the procedure in practice. I accept that most commonly employees managed travel to and from site by taking a rest break at a designated place. Only one employee, an HST graduate working directly under Mr Piscioneri suggested he would manage fatigue by leaving early on a Friday to comply with “14.5 hr day”. On the whole the various plans were fairly rudimentary. Having said that, the need to have a plan and to have it approved would have brought the issue of fatigue to the front of the employee’s mind. There was no evidence before me that the individual plans submitted and approved were completely disregarded on a wholesale basis.
131. Perhaps in terms of his oral evidence, the most important aspect of Mr Piscioneri’s evidence (361.20T - .40T) is that the mine took the requirements of individual travel plans and the fatigue policy generally, seriously. He did say, “we don’t live in a police state, and we don’t stand at the end of the [mine] road and see who turns which way” (361.26T). But the policy was enforced and if he became aware of a breach he would take it up with the individual’s supervisor by way of counselling to ensure compliance. Continued non-compliance would be taken very seriously (326.17 - .25T). Had it come to his attention that Mr Matinca had not been complying, he would have followed it up with Coalroc “and Mr Matinca himself” (364.45T).
132. In cross-examination, Mr Piscioneri identified that Coalroc was not the only contractor at the mine, the mine had 280 to 300 direct employees and the total workers at the mine including those provided by the contractors would be “close to 550” (365.5 - .17T).
133. Mr Piscioneri confirmed that underground coal mining is “hard, physical work” (367.25T). The approach to non-compliance was by way of coaching and management rather than discipline “in this time and day of age” (367.44T). He gave the following evidence about the process of the induction (368.1T):

“[In] the induction we talk about a lot of things. We talk about road traffic, speeding, drugs and alcohol, fatigue and it’s information and education, a lot of that information is difficult to manage from a site perspective, but it’s trying to build an awareness, so people are motivated to do the right thing for their own good.”

The individual travel plans are an important part of the procedure (368.5 - .16T).

134. Midweek standard shift arrangements were three 8 or 8 and ½ hour shifts being day, afternoon and night. There were some 12 hour shifts worked by individuals from “various contract groups” (369.20T). The mine worked 24 hours a day. The weekend shifts were 12 hour shifts.

Was Coalroc negligent?

135. The question of breach of duty in this case is to be determined by reference to the judgment of Mason J (as the Chief Justice then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 at 47 – 48. For the reasons I have already expressed in relation to the nature, content and scope of the duty of care, acknowledging that for the duty question there may be a somewhat more general inquiry than for breach analysis, I am well satisfied that a reasonable person in Coalroc’s position would have foreseen that its system of weekend work involved a risk of work induced fatigue related injury to the plaintiff during his journey from the mine to his home in Mt Hutton after the completion of his weekend shift. This foreseeable risk included and extended to the risk of Mr Matinca being seriously injured in a traffic accident because of work induced fatigue related inattention or misjudgment. The employer’s duty, as I have formulated it, extends to cover such matters.
136. The real question to my mind is the determination of what a reasonable employer would do by way of response to the risk, bearing firmly in mind that all questions of foreseeability and of the determination of the response of the reasonable employer must be determined prospectively, as though the accident which befell Mr Matinca had not happened.
137. It is perhaps worth setting out what Mason J said was required in the assessment of the response to the risk (at 47 – 48):

“The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”

138. Unlike questions of duty, of course, questions of breach are pure questions of fact not law. Although there was a tendency to mirror the aspects of breach found by McMeekin J in Kerle in the presentation of Mr Matinca’s case, I am not persuaded that it is appropriate for me to have regard to McMeekin J’s decision on that question arrived at in relation to a case which was not entirely identical to this, on evidence which, although similar, is not the same. I acknowledge that McMeekin J accepted that there were four practicable measures available to reduce or eliminate the risk of injury to Mr Kerle in the circumstances of that case. They are: a reduction in shift lengths at the end of the “tour” to permit workers to return to their home within what was in that case a 15 hour, rather than 14.5 hour maximum of work and travel time; the provision of a bus service, which was later introduced (not pressed in this case); the provision of accommodation for rest after the completion of the shift; and educational programs in addressing the risk of fatigue caused by the nature and conditions of work.
139. Mr Cummings argued that the measures available to ameliorate the risk included: regulation of shift lengths, by which I understood the argument to be reducing the hours of work; providing accommodation on site or accommodation allowances; education; and ensuring compliance with provision of an individual travel plan.
140. Mr McCulloch argued that the induction and education process itself was a reasonable response in all the circumstances. No more was required especially in the case of a coalminer of Mr Matinca’s experience.
141. So far as a reduction in the shift hours is concerned, presumably on the last day of the tour, the case is quite different from Kerle. I appreciate that McMeekin J considered that a reasonably practicable alternative ([212] – [262]). That largely turned upon the terms of the contract between the employer and the operator of the mine. It provided for the labour hire contractor to deploy its labour to “ensure that the total time from place of rest to the employees next place of rest shall not exceed 15 hours” (see Kerle at [262]). There is no evidence of any such arrangement between Coalroc and the operator of the mine. Rather, the relevant procedures provide for a method of risk management by the provision and implementation of an approved personal travel management plan (Exhibit PCB 1, p. 93).
142. Importantly, in Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; [2005] HCA 15 (“Koehler”) at 21, a plurality of McHugh, Gummow, Hayne and Heydon JJ stated at [21]:

“The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions ... Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant’s case here, an employer’s duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee.” (My emphasis)

Although directed to a case of psychiatric injury, the consideration is apposite in my judgment generally to cases involving questions of an employer’s liability.

143. I regard the principle established in Koehler as highlighting the importance of the consideration of legal coherence as explained in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [42] that the tort of negligence should not be permitted to subvert other principles of law and statutory provisions “which strike a balance of rights and obligations, duties and freedoms”. In State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235 Spigelman CJ rejected a claim in negligence based upon the propounding of a duty to provide a safe system of investigation and decision making with respect to procedures for discipline and termination of employment of a public school teacher. The Chief Justice said (at [95]):

“The present case raises issues of compatibility and coherence both between the law of tort and statutes and between the law of tort and the law of contract, as modified by statute and between the law of tort and administrative law.”

The Chief Justice said (at [155]):

“The expansion of the law of tort to matters concerning the creation and termination of a contract of employment, as distinct from performance under the contract, may distort the balance of conflicting interests found to be appropriate as a matter of contract or by intervention of statute ... Matters concerning the creation and termination of a contract of employment can, in my opinion, properly be left to the law of contract, subject to the extensive statutory modification that the parliaments have introduced into this specific area of contract law.”

I accept that adjustment of the hours of work required under a contract of service is not necessarily a matter which concerns its creation and termination. On the other hand, regulation of the hours of work is a matter best left to negotiation either between the parties to an individual contract, or enterprise bargaining between industrial organisations representing an employer or employers on the one hand, and unions, on the other. It seems to me that this is the province of industrial law. In my judgment the law of negligence has no business in fixing the hours of work for drive-in/drive-out coalminers. A decision by this court on that ground is likely to have ramifications for the industry well beyond the circumstances of this particular case.

144. Moreover, I think there are practical considerations involved which militate against acceptance of an argument that a reasonable employer in the position of Coalroc would have reduced the hours of work. In the first place it provided mining services to Ulan around the clock, 24 hours per day. The terms of the contract are not in evidence, and it has not been established how much flexibility was available under the contract in terms of providing labour in shifts of disparate lengths. Mr Piscioneri said that mid-week generally three rotating shifts of 8 hours were undertaken, although some contractors provided workers in two shifts of 12 hours. The evidence does not disclose whether three shifts of 8 hours was practicable on the weekend tour. Nor does it show whether the wages payable for three 8 hour shifts on the weekend tour would be attractive enough to coalminers to draw an appropriate supply of labour. Leaving aside questions of this type about structuring the work of the mine’s workforce, it’s not been shown for instance that on a given shift the different members of the same crew could peel off and complete their work at different times to accommodate their various return travel to their home either as drive-in/drive-out workers or commuters. It’s not been shown whether, say, Mr Matinca leaving earlier than other members of his shift would give rise to concerns about the safety of the remaining reduced crew or would unreasonably impede production by them. In short, it’s not been demonstrated to my satisfaction that shortening hours was a practicable alternative, even if this was a consideration properly within the province of the law of negligence.
145. Similar considerations apply to the argument that Coalroc, which is not the operator of the mine, or Ulan, which is no longer a party to the proceedings, should provide accommodation on site to enable the drive-in/drive-out workers to stay overnight at the completion of their third 12 hour weekend shift before returning home on Monday morning, “fully refreshed”. The provision of accommodation for drive-in/drive-out workers is not standard in the industry, although Mr Matinca had some experience of employers who provided accommodation. Questions of legal coherence also intrude here. It is not for the law of negligence to impose an industry standard potentially throughout Australia that requires mines to make accommodation available to drive-in/drive-out workers. I accept that fly-in/fly-out working contracts are very common, especially in the mining industry. It may be that some or even many employers provide accommodation to those workers either gratuitously or upon payment of a specified amount by the worker. These arrangements are a matter to be left to the law of employment in my judgment. Such an arrangement is not a matter properly within the province of the law of negligence.
146. I think it also important to point out that according to Mr Piscioneri’s evidence, a daily allowance of $133.03 was payable for travel and accommodation. I say nothing of the adequacy of this allowance. However, a coalminer returning to the coast at the end of his tour obviously could have elected to expend that allowance in accommodation in a motel or caravan park at a town along the way to mitigate the effect of fatigue. I am not satisfied that the provision of accommodation is a practicable alternative.
147. I should say, moreover, that it was clear to me from Mr Matinca’s evidence which I have recounted above (at [22]) that Mr Matinca, understandably, would be loath to spend another night away from home at his own expense rather than making his way home on Sunday night. Had the option been available, I am not persuaded that Mr Matinca would have availed himself of it. He was ready to go home at the completion of his weekend tour.
148. This really reduces the question of breach to a contest between the argument that Coalroc should have enforced the requirement that Mr Matinca submit a personal travel management plan for approval by his manager which presumably would have incorporated an adequate rest break mid-journey to enable him to revive his concentration for the remainder of his journey home on the one hand, with Coalroc’s argument that participation in Ulan’s induction program with its appropriate emphasis on fatigue procedures including the need to provide a personal travel management plan for approval was a sufficient and reasonable discharge of the duty of care it owed Mr Matinca in respect of the relevant risk of injury, especially as he was an experienced coalminer and well aware of the risk of injury associated with work induced fatigue and the measures available to him to safely manage it. In short, Coalroc’s argument was that the response of the reasonable employer in its position would have been to have done nothing more than it, and the mine operator, did.
149. On balance I am satisfied that a reasonable employer in Coalroc’s position, having regard to the magnitude of the risk, which it well recognised, including the probability of it materialising, would have insisted on Mr Matinca providing it with his personal travel management plan for its consideration and approval. This is not a measure involving any great trouble or expense at all, nor does it possibly conflict with any other obligations it owed to others. In fact, as the documents themselves and the evidence of Mr Piscioneri make clear, compliance with its obligations to the operator, at least, required Coalroc to ensure compliance with the agreed procedures. It will ill-behove the Court to regard compliance with the agreed procedures as nothing more than formalistic form-filling or box-ticking. The procedure in place, elementary or even rudimentary, as it may have been, was designed to bring the risks presented by work induced fatigue to the forefront of the mind of each of the workers whose circumstances, including travel at the end of the shift, required them to clock up more than 14.5 hours in a given day. It also served to reinforce the training each coalminer had been given in the induction. By asking each individual to provide a management plan, Coalroc and the operator were paying due regard to personal autonomy. When one bears in mind that the employer’s duty is formulated as one of ensuring or seeing that reasonable care is taken, detecting breaches and following up on them to require compliance are obvious measures which ought to be taken. And this Coalroc did not do.
150. It is necessary to make some allowance for Mr Matinca’s brain injury when assessing his evidence. I am satisfied that he was mistaken in his evidence-in-chief when he said he did not know of the personal travel management plan forms. This was clarified beyond any question in my mind during cross-examination when he was taken to the relevant documents by Mr McCulloch. Even so, and accepting the procedures put the obligation of providing the plan on Mr Matinca, in circumstances where he overlooked or neglected to submit it, reasonable care required Coalroc to follow him up and as his employer require him to observe the procedures in which he’d been trained. Its failure to do so was a relevant breach of the duty of care.

Causation

151. As I have said, the management plan that Mr Matinca would have provided, had it been required of him as it should have been would probably have incorporated a proposal for a rest break of about 20 to 30 minutes at a town or say truck stop along the route he followed between the mine and his intended destination of his home at Mt Hutton. There was an implication in Coalroc’s submissions that given the rudimentary nature of the plans, they could and would probably be readily discarded by a worker once he or she had embarked upon the journey home feeling, as Mr Matinca normally did, that he or she was right to get home safely, however misguided that attitude may have been. It is implicit in the argument that Mr Matinca would have behaved in that way. After all he was an experienced miner who was aware of the dangers associated with work induced fatigue because of the training he had received and the experience he had acquired in the industry. Notwithstanding these considerations, on no prior occasion had he made a deliberate stop for the definite period of time for the purpose of breaking up the journey and reviving himself by way of relief from fatigue. At best, he may have stopped for fuel, but not always.
152. Coalroc’s arguments are not without force. However, as I have said, notwithstanding the effects of his head injury, Mr Matinca struck me as a sober and sensible person and doing the best I can I formed the view that those attributes were characteristic of him as a mature adult before the accident. Had Coalroc followed him up on the need to provide the personal travel management plan it would have brought home to him by way of reminder the need to take the exercise seriously and to observe it as part of the requirements of his employment. In those circumstances I am satisfied on the balance of probabilities that he would have complied with the plan he submitted.
153. It should be borne in mind that the plan required approval by his manager. This too would bring home to him the seriousness of the requirement. I am of the view that the plan would not have been approved unless it was assessed as appropriate, sensible and likely to manage the risk of injury related to work induced fatigue on his journey home after his weekend tour.
154. The next question that arises in relation to causation is whether adherence to the plan of taking a rest break of about 20 to 30 minutes at about the halfway mark of the journey home would have sufficiently revived Mr Matinca to relieve him of the effects of work induced fatigue for the balance of the journey? Dr Desai was largely focused on the progressive and cumulative effects of inadequate sleep over the days leading up to 17 April 2016. In his opinion, this was in no small part a function of the reduction in the opportunity to obtain an adequate period of quality sleep because of the long hours of work and travel involved in Mr Matinca’s tour. I gained the impression he was not convinced a rest break of the type I have in contemplation would provide an adequate counter-balance to dissipate the risks associated with driving under the influence of work induced fatigue.
155. All mature adults with experience as a licenced driver are familiar with the effects of fatigue on driver performance. The matter is not one exclusively within the domain of the specialist sleep and respiratory physician. The traffic experts too are familiar with and have expertise in the effect of fatigue on driver performance. I gained the impression that both Mr McDonald and Mr Johnston had been involved in the development or review and assessment of the various public education programs that have been implemented by State road and traffic authorities to ameliorate the accident risk inherent in driver fatigue. Typically, a rest break coupled perhaps with the taking of some abstemious refreshment is the remedy proposed. I was left with the impression that the experts regarded these solutions as effective.
156. As I have stated, I am satisfied that fatigue induced inattention at the critical point of Mr Matinca’s approach the end of the right-hand curve in Macquarie Road was, to adopt the language of the CLA, a necessary cause of his loss of control and therefore of the collision with each tree. Absent that element, I was not satisfied that the speed of his approach or the condition of the road individually or together would have caused the accident. In my judgment, on the balance of probabilities Mr Matinca would have been refreshed by a break of the type he would have suggested, had he been required to provide the personal travel management plan. In this circumstance, he probably would not have suffered the inattention due to fatigue that caused the accident. In my view he probably would have successfully and safely completed the journey.
157. On this basis, I am satisfied that Coalroc is legally liable in negligence to Mr Matinca for damages for the injuries he suffered in the accident.

Contributory negligence

158. Coalroc relies upon the partial defence of contributory negligence. Mr Matinca was under an obligation to exercise reasonable care for his own safety. I am satisfied on the balance of probabilities that he breached that in certain material respects. First, it is clear that he had undergone training and numerous inductions for various employers in the coal mining industry, including about the effects of work induced fatigue. He was aware of these matters on 17 April 2016 and of the need to be alert to the effect of fatigue upon his own performance, including as a driver. Secondly, as I have said, all mature adults with experience as a licensed driver are aware of the effects of fatigue on driver performance, and Mr Matinca is no different. Thirdly, fatigue rarely comes out of the blue. While Mr Matinca has no recollection of the journey, it is very likely that tell-tale signs of fatigue would have made themselves known to him well before the right-hand curve on Macquarie Road and he must have driven in disregard of them, believing he would make it home safely. Fourthly, he had received the appropriate induction and as his evidence in cross-examination made clear he was aware of the need to lodge the personal travel management plan because his hours of work, including travel time, would exceed 14.5 hours probably on every Friday and Sunday he worked a weekend shift.
159. He did approach the point where he lost control at or somewhat above the speed limit, which although of itself did not cause the accident, was probably in excess of an appropriate speed on a wet road. It was not shown that he was aware of the “bumps”. Finally, from his own knowledge and experience he ought to have known to take a break of 20 to 30 minutes at about the halfway point of his journey as a precaution against the effects of fatigue even if he felt right to drive.
160. In apportioning responsibility between Mr Matinca and Coalroc, certain well-established principles apply. Fundamentally two questions are important. The first is the degree of departure from the standard of reasonable care by each of Coalroc and Mr Matinca respectively and the second is the causal potency of their respective negligence.
161. In making this assessment I bear in mind the stringent unwavering nature of the employer’s duty to see that reasonable care is taken. I also bear in mind that inattention, inadvertence or even negligence on the part of the employee is within the scope of the risks the employer is required to guard against. Perhaps unlike other potential tortfeasors, accident prevention is part of a modern employer’s responsibility. Coalroc created the environment in which work induced fatigue became a foreseeable risk of personal injury. It had a greater obligation to take reasonable steps to guard against the risk of its materialisation.
162. Fatigue was the consequence of Mr Matinca’s performance of his obligations to his employer in the system of work it devised and under the terms of his engagement it required. To the extent to which speed may have played a small part in conjunction with fatigue to the causation of the accident, Mr Matinca’s judgment about and ability to regulate that factor was impaired as a consequence of his work induced fatigue. While he failed to take a break or to otherwise heed what must have been at least incipient tell-tale signs of fatigue, errors in self-assessment are themselves an aspect of fatigue. In all the circumstances, I am of the view that a just and reasonable apportionment of responsibility is: as to the negligence of Coalroc 70 percent; and as to the contributory negligence of Mr Matinca 30 percent.

Damages

163. As I have said, damages have been agreed in the sum of $1,615,403.26. The parties also agreed that as at the date of the hearing, Coalroc had made payments to, for or on behalf of Mr Matinca under the provisions of the WCA in the sum of $114,003.51. After deduction of 30 percent for contributory negligence the judgment will be in the sum of $1,130,782.28.
164. One legal issue remains. As I have found that Coalroc has made good its defence of contributory negligence, the question is whether the compensation paid by Coalroc in respect of the injury required to be deducted from the damages under s 151B WCA as it was immediately before the commencement of the Workers Compensation Further Amendment Act should be reduced to effect the apportionment for contributory negligence in accordance with the provisions of s 10 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (“LRMPA”). The short answer is “No” because of the reasoning in Zampetides v New South Wales [2000] NSWSC 829, Master Malpas as affirmed and applied by the Court of Appeal in Tabvena v Oag [2002] NSWCA 61, Meagher JA, with whom the other members of the Court agreed.
165. Under s 151B as it continues to apply to coalminers, a person who recovers damages in respect of an injury from the employer liable to pay compensation under WCA ceases to be entitled to any further compensation under that Act and the amount of any compensation already paid is to be deducted from those damages.
166. Section 10 LRMPA provides for the apportionment of the deduction in conformity with apportionment of liability in the case of the former s 63(5) Workers’ Compensation Act 1926 (NSW), now repealed. Notwithstanding the repeal of that legislation and the enactment of the WCA 35 years ago, no amendment has been made to s 10 to update it and bring it into line with the current position under WCA.
167. In Tabvena v Oag, Meagher JA carried out a careful review, in an appendix to his judgment, of the relevant legislative history, but he did not consider the omission could be made good by the Court: cf Jones v Wrotham Park Settled Estates [1980] AC 74 at 105 – 6.
168. Coalroc is entitled to deduct the whole of the compensation paid by it without reduction notwithstanding my apportionment of liability for contributory negligence under LRMPA.

Orders

169. My orders are:

(1) Subject to the provisions of s 151B Workers Compensation Act 1987 (NSW) in the form it took immediately before the commencement of the Workers Compensation Further Amendment Act 2001 (NSW), judgment for the plaintiff against the defendant in the sum of $1,130,782.28;

(2) The defendant to pay the plaintiff’s costs of the proceedings;

(3) Any application for any special order for costs may be made by either party lodging with my chambers electronically by email addressed to my associate a short written submission setting out the order sought and the reasons why it should be made together with any necessary affidavit in support within 14 days of the date of judgment;

(4) The opposing party to file any submission and evidence in response within a further period of 7 days.

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