Coalroc Contractors Pty Ltd v Matinca (No 2)

1. [1]

   MEAGHER JA: I agree with the reasons and proposed orders of Adamson JA.

2. [2]

   MITCHELMORE JA: I agree with Adamson JA.

3. [3]

   ADAMSON JA: On 30 June 2022, Campbell J (the primary judge) entered judgment in favour of the first respondent, Troy Matinca, against the appellant, Coalroc Contractors Pty Ltd, in the sum of $1,130,782.28. The judgment sum was an agreed amount less a reduction of 30% for contributory negligence.

4. [4]

   In proceedings commenced in the Supreme Court on 9 April 2019, Mr Matinca claimed damages from the appellant, his employer, for loss suffered as a consequence of injuries sustained at about 8.20pm on 17 April 2016 when the car he was driving (a Toyota Prado SUV) drove off Macquarie Road, Warners Bay, on its western side (crossing the oncoming lanes), collided with a tree and then crossed the carriageway in a generally eastern direction before colliding head-on with another tree. The accident involved only his vehicle. Mr Matinca had no memory of the accident or of the several hours before its occurrence. There were no eyewitnesses.

5. [5]

   Mr Matinca’s case at trial was that the accident was caused by fatigue induced by the nature and conditions of his work. He alleged that the duty which the appellant owed to him extended to taking reasonable care to manage the risk of an accident as a result of fatigue on his journey home at the end of his period of work over the weekend of 15, 16 and 17 April 2016 (referred to as a tour). The particulars of negligence included allegations that the appellant had failed to provide on-site accommodation for Mr Matinca at the end of his last shift and that the appellant had failed to reduce the length of his shifts so that he would not have to work and commute for longer than 14.5 hours on any given day. However, as there was no notice of contention it is not necessary for this Court to address any of the bases of the plaintiff’s claim other than the one which founded the primary judge’s determination that the appellant was liable.

6. [6]

   The primary judge found that:

   1. (1)

      the appellant was negligent in failing to require Mr Matinca to submit for its approval a personal travel management plan, specifying his proposal for managing fatigue on his route from Ulan, where the mine was located, to his home at Mount Hutton (also referred to as Warners Bay), an outlying suburb of Newcastle;

   2. (2)

      such a plan would have required Mr Matinca to stop and rest for about 20-30 minutes on his way home;

   3. (3)

      Mr Matinca would have taken a rest break of that length; and

   4. (4)

      such a rest break would have prevented the accident, which was caused by Mr Matinca being fatigued.

7. [7]

   The appellant appeals against the judgment on the following grounds:

8. [8]

   There is no challenge to the deduction of 30% for contributory negligence.

9. [9]

   Mr Matinca indicated to his former solicitor Burke & Mead Lawyers Pty Limited (Burke & Mead) and to the appellant’s solicitors that he does not wish to participate in the appeal. On its application, Burke & Mead was joined as a second respondent to the appeal on condition that it bear its own costs of the appeal: Coalroc Contractors Pty Ltd v Matinca [2023] NSWCA 83. Mr Stone SC appeared with Ms Magee for Burke & Mead on the appeal. Mr McCulloch SC appeared with Mr Stanton for the appellant.

The applicable law

1. [10]

   All questions of the existence, nature, scope and content of the duty of care, negligence and contributory negligence are to be determined by the general law. As Mr Matinca was a “coal miner” (being a worker employed in or about a mine), the amendments made by the Workers Compensation Further Amendment Act 2001 (NSW) do not apply to him: s 282, Schedule 6, Part 18, Clause 3 Workers Compensation Act 1987 (NSW). Thus any common law right to damages is modified by Divisions 2 and 3 of Part 5 of the Workers Compensation Act in the form they took immediately prior to the commencement of the 2001 amendments on 6 December 2001. Further, the Civil Liability Act 2002 (NSW) does not apply: s 3B(1)(f) of the Civil Liability Act.

The facts

1. [11]

   His Honour’s findings of primary fact are largely uncontested. As is apparent from the appeal grounds, it is the inferences and conclusions drawn from these primary facts which are the subject of challenge. In these circumstances, it is useful to summarise the facts as found by the primary judge, the uncontroverted evidence and the evidence with respect to contested facts before turning to the grounds of appeal.

2. [12]

   The appellant was party to a supply contract with Ulan Coal Mines Limited, pursuant to which it was obliged, by cl 2.6, to “take all reasonably practicable steps to ensure the safety of all persons at all times” as well as “to ensure that its workers, including employees, … comply in all respects” with relevant standards.

3. [13]

   Ulan West Operations Pty Ltd was the owner and operator of the mine. It engaged the appellant to supply underground mining services at the mine. It would appear that these companies were ultimately owned by Glencore.

4. [14]

   Mr Matinca had been a coal miner since 2004 and had worked at several different mines. He appreciated that “[b]eing a contractor you had to go where the work was”. By letter dated 16 February 2016, the appellant offered Mr Matinca casual employment as an underground miner/operator at its underground coal mine in the Upper Hunter at Ulan (the mine), located about 45 minutes by road, northeast of Mudgee.

5. [15]

   He was employed by the appellant as a casual worker on a Friday to Sunday roster in accordance with the Black Coal Mining Industry Award 2010. The letter of offer said, in part:

6. [16]

   During the period of his “tour” (the work period from Friday to Sunday), Mr Matinca stayed with one of his workmates at a caravan park in Mudgee on Friday and Saturday nights.

7. [17]

   During each shift, Mr Matinca was allowed two half hour “crib breaks”. The shift time included travel in and about the mine to access his place of work, as well as time for showering and changing at the end of the shift. Mr Matinca signed the letter of offer on 1 April 2016.

8. [18]

   Mr Matinca completed an induction assessment on 3 March 2016. In the course of his induction, he was given instruction about work safety and fatigue management by reference to the protocols and procedures referred to below. The induction was carried out by a member of staff who reported to Matthew Piscioneri, the Health, Safety and Training Manager for Glencore at the mine.

9. [19]

   Mr Piscioneri (who was called as a witness in Mr Matinca’s case) said that in the induction course which his staff conducted:

10. [20]

    In the course of the induction, participants were required to fill in an “assessment” which included directions such as “list two symptoms of fatigue”, which Mr Matinca successfully answered by listing “drowsiness” and “attention span”. Participants were also asked whether the following statement was true or false (which Mr Matinca correctly answered “true”):

11. [21]

    Mr Matinca accepted in cross-examination that, having worked in mines, he was aware of the need to submit a travel plan if his combined working hours and travel hours exceeded the relevant limit.

12. [22]

    The trial was conducted on the basis that the Ulan West Underground Fatigue Management Procedure (the Fatigue Management Procedure) was a relevant standard within the meaning of the supply contract between Ulan Coal Mines Limited and the appellant. Clause 2 of the Fatigue Management Procedure provided that the standard applied to all employees, contractors and visitors at the mine, and thus applied to Mr Matinca.

13. [23]

    Clause 3.1.2 listed “fatigue risk factors”. The “work-related risk factors” included: “Sustained mental/physical demands of the job”; “Level of concentration required”; “Consequence of human error due to loss of vigilance”; and “Repetitive or monotonous work”. The “personal related risk factors” included: “Excessive travel/commute time to and from work (necessary)”; and “Sufficient sleep and recovery away from work”.

14. [24]

    Clause 3.2 of the Fatigue Management Procedure provided:

15. [25]

    Clause 7 of the Fatigue Management Procedure defined “Drive in/Drive out” as: “[t]ime spent for ‘drive in/drive out’ and commuting to site” and “Work related travel as “[t]ime spent for ‘drive in/drive out’ and commuting to site”.

16. [26]

    The table provided that for “work hours (inclusive of commute)” of up to 14.5 hours, individuals would monitor their own fitness for duty and that supervisors would monitor individuals for signs of fatigue. For work hours between 14.5 to 16.5 hours, the guideline stipulated:

17. [27]

    The “JSA” referred to in the table was accepted to be a Job Safety Analysis. However, the trial was conducted on the basis that a form entitled “Individual Travel Plan” (which had apparently been produced by Glencore for use at the mine) met the requirement in cl 3.2 of the Fatigue Management Procedure for a JSA.

18. [28]

    The appellant had its own Safety Health Management Plan, applicable at the time of the accident, which included the following in Section 18, entitled “Fitness for work”:

19. [29]

    Although the maximum “work hours” specified in the appellant’s Safety Management Plan was 14 hours, Mr Matinca’s case was conducted on the basis that the stipulation in the Fatigue Management Procedure of 14.5 hours was the relevant requirement.

20. [30]

    Mr Piscioneri identified examples of Individual Travel Plans which had been filled out by employees at the mine (although none of the samples was filled in by an employee of the appellant). These documents were admitted on the limited basis that they were samples of documents used by employees at the mine and were tendered to prove that the system was not only established but also implemented.

21. [31]

    Mr Piscioneri admitted that, although the forms were used at the mine, it was difficult to monitor compliance with the travel plans because “once [employees] clock off, we don’t know what they do … we don’t live in a police state and we don’t stand at the end of the corporate road and see who turns which way.”.

22. [32]

    He said, of the travel plans:

23. [33]

    The individual travel plans which were in evidence and had been approved by a “supervisor” contained details of fatigue management for the homeward trip which included the following:

24. [34]

    Mr Matinca worked in a crew of four, of whom two (who were brothers) lived in Mudgee and one, Richard Moppett, lived in Bathurst.

25. [35]

    Mr Matinca worked the following hours for the appellant at the mine:

26. [36]

    As referred to above, while he was working for the appellant, Mr Matinca lived at Mount Hutton, which was 270km from the mine. Because he lived more than 100km from the mine and therefore outside the “midwestern region”, he was classified by the appellant as a “drive in/drive out” worker for the purposes of the Fatigue Management Procedure.

27. [37]

    It was his usual practice to go to bed at about 8pm or 8.30pm on Thursday nights and to rise at 2am on Friday morning to leave for work. His journey from Mount Hutton to the mine would take about 3 hours and 15 minutes. He would sometimes stop for fuel or a quick breakfast although usually he would “simply drive through”. He always travelled alone as none of his workmates lived nearby.

28. [38]

    When he arrived at the mine, Mr Matinca would log on (at the times set out in the table above), subject himself to drug and alcohol testing, dress in his work outfit and attend a toolbox talk at 6am. His crew (about 4 or 5 miners) would then be taken to their underground work site. The two half hour crib breaks would generally be taken together as a one-hour lunch break at a convenient time in the course of the day. At the end of the day, Mr Matinca and his workmates would return to the changeroom to shower and change before logging off and leaving the mine.

29. [39]

    As referred to above, between successive shifts, over the weekend, Mr Matinca would stay overnight in the caravan park at Mudgee. For reasons of economy, he tended to share a cabin with a workmate, Mr Moppett. This worked out at $75 each per night. Mr Matinca arranged his accommodation himself, as the appellant did not provide accommodation for such workers. Mr Matinca received an allowance of $131 for three nights towards the cost of this accommodation. His workmates would make similar arrangements to stay in Mudgee or Gulgong.

30. [40]

    On Friday and Saturday nights, Mr Matinca tried to go to bed sufficiently early to enable him to get at least eight hours sleep but this varied, depending on how tired he felt. He understood that he was required to make sure that he was fit for work by having sufficient sleep.

31. [41]

    On the second and third days of his three-day shift, Mr Matinca usually woke at about 4.15am. However, on Sunday morning (before his last shift), Mr Matinca would set his alarm a little earlier to allow enough time to pack for his journey home after his shift. Mr Matinca said that he was familiar with the issue of fatigue from his training, knowledge and experience. He agreed that fatigue was a part of all inductions, including the one at the mine.

32. [42]

    After his shift on Sunday, Mr Matinca would drive straight home. He did not rest in his car on any Sunday night because he considered that he could drive home safely. He never contemplated returning to Mudgee to spend the night after the Sunday shift, although he accepted that he would have been fresher for the homeward journey had he undertaken it on Monday morning. He did not recall ever having stopped on the journey home from the mine on a Sunday night, except perhaps for fuel.

33. [43]

    It was accepted at trial that the combination of the trip from Mudgee to the mine (which took about 45 minutes), the 12-hour shift and the homeward journey put Mr Matinca in the applicable band for 14.5-16.5 hours in the Fatigue Management Procedure.

34. [44]

    At about 6pm (or possibly as late as 6.10pm) on 17 April 2016, Mr Matinca started his journey home to Mount Hutton.

35. [45]

    The accident occurred about 259km from the mine, about 2 hours and 20 minutes after Mr Matinca had left the mine. He was a short distance (about 11km) from his home. It was dark and raining and the road was slippery because of the wet weather.

36. [46]

    His Honour found, at [1]:

37. [47]

    The primary judge found that Macquarie Road was resurfaced on or about 10 May 2016 (after the accident) and that, at the time of the accident there was a “‘deficiency’ in the vicinity of the curve”. His Honour also found, at [41]:

38. [48]

    The parties retained traffic engineering experts (Nigel McDonald was retained on behalf of Mr Matinca and Grant Johnston was retained on behalf of the appellant) to investigate and opine on the mechanics of the collision and the potential role played by speed and fatigue in the cause of the accident. They agreed on the following:

39. [49]

    There was a significant issue at trial as to whether fatigue was a cause of the accident. Mr Matinca called Dr Anup Desai, a consultant physician in respiratory and sleep medicine, and Mr McDonald on this question. They were both of the opinion that Mr Matinca was fatigued at the time he lost control of his vehicle and that his fatigue contributed to the accident. The primary judge made a finding to that effect.

40. [50]

    However, Dr Desai accepted in cross-examination that the mechanism of the collision (including the path of the vehicle) was an indicator against fatigue being involved and that he could not determine why Mr Matinca lost control of the vehicle, although fatigue was a reason why someone might lose control of a vehicle. Mr McDonald made similar concessions.

41. [51]

    The appellant relied on the evidence of Mr Johnston whose opinion was, in summary, that incidents which result from fatigue generally involve the release of control of the steering wheel which would have resulted in the vehicle continuing to proceed straight ahead (that is, to the south and more to the east, causing the vehicle to go off the carriageway to the left rather than crossing over to the west (the right side), as occurred in the present case). The fact that the vehicle crossed over the road is indicative of “driver input” and inconsistent with fatigue.

42. [52]

    Mr Matinca gave evidence that if someone at the mine had asked him to fill in a travel plan, he would have filled it out as directed. He was not asked what he would have proposed as his travel plan for getting home after the Sunday shift or whether he would have complied with his proposal.

The primary judge’s findings

1. [53]

   The key findings made by the primary judge have been summarised above. However, because the grounds of appeal challenge several individual findings, it is necessary to set out the material findings in more detail:

   1. (1)

      it can be inferred that fatigue had a “real part to play” in the causation of the accident because:

   2. (2)

      the appellant owed Mr Matinca “a duty of care [that extended] beyond [his] hours and place of work to his journey to and from work at least in so far as the risk of work-induced fatigue injury is concerned … to see that reasonable care is taken to obviate that risk”;

   3. (3)

      the duty of care which the appellant owed to Mr Matinca required it to “[insist] on Mr Matinca providing it with his personal travel management plan for its consideration and approval”;

   4. (4)

      if the appellant had insisted that Mr Matinca provide a travel plan, Mr Matinca would have provided a travel plan which would have incorporated a proposal that he have a rest break for 20-30 minutes at a town or truck stop along his route between the mine and his home;

   5. (5)

      the appellant would not have approved a plan “unless it was assessed as appropriate, sensible and likely to manage the risk of injury related to work induced fatigue on [Mr Matinca’s] journey home”;

   6. (6)

      Mr Matinca would have complied with the plan set out in (4) above because he was a “sober and sensible person”; and

   7. (7)

      if Mr Matinca had complied with the plan set out in (4) above, “he probably would not have suffered the inattention due to fatigue that caused the accident [and] would have successfully and safely completed the journey.”.

The grounds of appeal

1. [54]

   It is convenient to address the grounds of appeal in the categories adopted by the parties in their submissions.

2. [55]

   In substance, each of grounds 1-5 challenges the primary judge’s finding that fatigue was a cause of the accident.

3. [56]

   His Honour accepted that Mr Matinca did not lose control of the vehicle because of a loss of consciousness (since this was excluded by the path of the vehicle) but rather by reason of momentary inattention. While fatigue was one explanation for momentary inattention, there were other possibilities which arise from the circumstances: the driver’s mind wandering, a phone call, dropping a phone, an insect flying into the vehicle, a car coming up too close behind or adjusting the car radio. The plaintiff’s lack of recollection did not permit him to exclude any of these possibilities. It was accepted that fatigue increased the risk of momentary inattention but, in order to discharge the onus of proof, the plaintiff had to prove that it was the probable cause of the accident and not merely a possible cause. Although the experts agreed that fatigue was a common, and potentially, the most common, cause of single vehicle accidents, it does not follow that it was probably the cause of this accident.

4. [57]

   In Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 (Bendix Mintex), Mason P confirmed at 316G that “[t]he law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury” (emphasis added). His Honour referred to various common law principles which assist plaintiffs to discharge the onus of proving causation where there is a number of potential tortfeasors or where the plaintiff has a pre-existing condition which renders the plaintiff more susceptible to the injury which eventuates. However, his Honour said, at 318B:

5. [58]

   Also in Bendix Mintex, Beazley JA said, referring to Sydney County Council v Furner (1991) 7 NSWCCR 210 at 214 (Hope JA), that the onus of proof of causation is “not discharged by establishing that a particular matter cannot be excluded as a cause of the injury.”

6. [59]

   It can be inferred that the hours which Mr Matinca worked on the Sunday, particularly in light of his travel and work on the previous two days, may have caused fatigue. Although Mr Matinca could not recall the day of the accident, he could have called the other members of his crew to give evidence about the work they had performed during the day and any observations any of them had made as to whether he was fatigued or not at the end of the shift. He could also have called Mr Moppett to give evidence about any observation Mr Moppett had made about his sleeping patterns or alertness on the tour. Driving for 2 hours and 20 minutes after a full days’ work may also have caused fatigue.

7. [60]

   But where the cause of the accident was not loss of consciousness (which would have tended to establish that fatigue was a material cause) but momentary inattention, more evidence is required to discharge the onus which Mr Matinca bore of establishing that fatigue was a cause of the accident, there being multiple other potential causes and no direct evidence of the accident itself, such as would enable the mechanism of the accident to be determined.

8. [61]

   For these reasons, I am persuaded that each of grounds 1-5 has been made out.

9. [62]

   The appellant contended that the primary judge was in error in failing to find that the duty of care which it owed to Mr Matinca ended when he “left the curtilage of the work site”. It relied on ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372; [1964] HCA 26 (ACI Metal), where Kitto J, at 379, drew a distinction between circumstances where an employee was performing work for an employer or going to a particular place because of a direction from the employer (where the employer owed the employee a duty of care) from those where the employee was simply travelling to or from work (in respect of which the employer did not owe the employee any duty of care).

10. [63]

    It was submitted on behalf of Mr Matinca that the journeys from his home to the mine on Friday morning and from the mine to his home on Sunday evening did not fall outside the parameters of the duty of care which the appellant owed to him because of the remote location of the mine which required him to travel a significant distance for the purposes of his employment. He relied on Kerle v BM Alliance Coal Operations Pty Limited [2016] QSC 304; (2016) 262 IR 381 (Kerle), in which McMeekin J distinguished ACI Metal by reference to its particular facts.

11. [64]

    The trial was conducted on the basis that the appellant had no power to control the actions of its employees, including Mr Matinca, when they left the mine at the end of the tour. Control is relevant to the existence and scope of a duty of care: see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24 (Mason J); [1986] HCA 1 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [44]-[46] (Gaudron J); [104]-[108] (McHugh J, Gleeson CJ agreeing); [233] (Kirby J). In the present case, the duty which the primary judge found did not presuppose that the appellant would be able to control Mr Matinca’s conduct after he left the mine on Sundays at the completion of his “tour” of three 12-hour shifts. The only relevant duty found was the duty to insist on Mr Matinca providing a travel plan before his departure, which the appellant was obliged to consider and approve if it was appropriate.

12. [65]

    In these circumstances, I do not consider it to be either necessary or desirable to address ground 6 further since it is expressed at a level of abstraction and raises issues of scope and control which go beyond the issues which arise from the challenge to the primary judge’s decision.

13. [66]

    Again, I do not consider it to be necessary to address this ground having regard to the primary judge’s decision. His Honour was required to determine whether the duty alleged was owed, and, if owed, whether it was breached and, if breached, whether the breach caused the injuries sustained by Mr Matinca. As Mr Matinca did not allege that the appellant owed him a duty to train him about the effects of fatigue, the primary judge was not obliged to determine whether what the appellant had done by way of training was sufficient to discharge any (differently framed) duty of care other than the one on which, relevantly, Mr Matinca relied.

14. [67]

    In these circumstances, it is not necessary to address ground 7.

15. [68]

    The appellant was contractually obliged to implement the safety policies which applied at the mine generally. It had an interest in making sure that its own employees reached their homes safely after a tour of duty. It can be taken to have appreciated that some of its employees would live locally (such as in Mudgee) while others, including Mr Matinca and Mr Moppett, would come from further afield. The fact that an employer takes steps to protect employees from harm outside the work environment (including because it has obliged itself by contract with a third party to do so) does not mean that the employer necessarily owes a duty of care to protect its employees until they arrive safely home after a work day or, in this case, a tour. Just as obligations imposed under safety regulations do not give rise to a corresponding duty of care (Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [49] (French CJ, Gummow, Hayne, Heydon and Bell JJ), contractual obligations, such as those between the appellant and Ulan Coal Mines Limited, which required the appellant to comply with the safety standards of Ulan Coal Mines Limited with respect to its employees do not, without more, create an equivalent duty of care.

16. [69]

    The only duty which the primary judge found to have been relevantly owed by the appellant was a duty to insist on a travel plan being provided for its approval and a corresponding duty to approve such plan only if it was appropriate.

17. [70]

    In the circumstances of the present case, the only purpose of the performance of such a duty was to bring to the forefront of an employee’s mind the importance of managing fatigue on the way home. All that would appear to have been required for a plan to be approved was that an employee put something in the “travel plan” box which indicated some appreciation of the risks of fatigue when driving. This is not to suggest that the requirement of travel plans was entirely arid since even mature adults are apt to forget the effect of fatigue on driving and reminders may be useful. However, it is difficult to discern how the insistence on the provision of a travel plan which, it was accepted, could neither be enforced nor monitored, would amount to a reasonable precaution to save the employee from the risk of harm arising from driving while fatigued.

18. [71]

    For these reasons, I am persuaded that ground 8 has been made out. In these circumstances, it is neither necessary nor appropriate for this Court to address whether the appellant owed a duty to Mr Matinca other than the one alleged and found by the primary judge as having been owed.

19. [72]

    Proof of causation requires the injured party to prove that he or she would have been in a better position had the tortfeasor not breached the duty alleged to have been owed: Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1 at 12 (Mason, Wilson and Dawson JJ); [1986] HCA 3. To address these grounds, it is necessary to assume, contrary to the views I have expressed above, that the appellant owed a duty to insist that Mr Matinca provide a travel plan before leaving work at 6pm on the evening of the accident.

20. [73]

    On this basis, in order to establish causation in fact, it was necessary for Mr Matinca to prove:

    1. (1)

       that had the appellant insisted that he provide a travel plan, he would have done so;

    2. (2)

       what the travel plan would have provided;

    3. (3)

       that he would have complied with the travel plan; and

    4. (4)

       that the accident would not have occurred if he complied with the travel plan.

21. [74]

    Mr Matinca gave unchallenged evidence that, if he had been required to do so by the appellant, he would have submitted a travel plan for his journey home (item (1) above). However, he gave no evidence as to (2) or (3) above.

22. [75]

    The primary judge’s finding that the travel plan would have provided for a rest break of 20-30 minutes was not based on any evidence. No such provision was included in any travel plan which was in evidence. As referred to above, Mr Matinca was not asked about what he would have put in a travel plan. There were significant subjective matters which tended against his either proposing or complying with such a plan: cf. Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 at [17] (Gleeson CJ). First, he was positively indignant at the suggestions put to him in cross-examination that he either return to Mudgee for the night after completing his shift on Sunday evening or that he rest in the car before embarking on the homeward journey. Second, he was frank about his desire to return home after finishing his tour and said, in effect, that he would only ever stop if he needed petrol on the way home. Third, he had been prepared to drive home for longer than two hours after each of his six Sunday shifts when he knew about the effects of fatigue on driving and had received training on that topic.

23. [76]

    While a plaintiff’s evidence about what he or she would have done in a particular situation is not necessarily determinative (because it is almost inevitable that it will be affected by hindsight), it is significant that Mr Matinca was not asked what he would have put on such a form and whether he would have complied with his travel plan. Although s 5D(3)(b) of the Civil Liability Act prohibits such evidence except if it is against the plaintiff’s interests, the prohibition did not apply because the Civil Liability Act was excluded in the present case: s 3B(1)(f). Even if the inference that the answer would not have assisted Mr Matinca’s case were not drawn (see Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-19), there is still a dearth of evidence (whether direct or circumstantial) to prove the counterfactual which the primary judge found and weighty circumstantial evidence to the contrary.

24. [77]

    Further, it could not be inferred that the appellant would have required a travel plan which required such a break to have been submitted by Mr Matinca as a condition of the grant of its approval. As referred to above, such evidence as there was (the travel plans referred to above) tended to indicate that the supervisor would “approve” any formulation which acknowledged driver fatigue as a factor, no matter how nebulous. It can be inferred that the reason for this was that the appellant had no means of enforcing the travel plans and no right to inquire of its employees whether or not they had actually adhered to their travel plans (their safe arrival home being no indicator of such adherence). This circumstance would appear to explain the divergent travel plans which were actually approved.

25. [78]

    The finding in (4) does not appear to be supported by the evidence and, in my view, involved a similar error to that which has been referred to above in the context of ground 1-5.

26. [79]

    The primary judge summed up the effect of Dr Desai’s evidence at [154] as follows:

27. [80]

    The primary judge relied on the evidence which tended to establish the uncontroversial proposition that the risk of an accident caused by fatigue is ameliorated by a rest break to support his finding that a rest break of 20-30 minutes would probably have avoided the subject accident. As referred to above, a decrease in risk is no more capable of proving negative causation (that the accident would not have occurred if a rest break had been taken) than an increase in risk is capable of proving causation positively (that the accident was caused by fatigue because no rest break was taken). Indeed, in Kerle, the employer was held to be liable notwithstanding that the employee (Kerle) had taken a rest break of about thirty minutes at about two hours into his drive home, which was, as the outcome demonstrated, insufficient to offset the effects of fatigue in the circumstances of that case (which included five consecutive nights of night shift, to which Kerle was not accustomed).

28. [81]

    In effect, Mr Matinca’s case, as found by his Honour, amounted to a failure to warn case, since all the appellant could ever do (apart from requiring its employees to stay overnight after such a shift before travelling home or rest for a period after the conclusion of the shift, neither of which require consideration since there was no notice of contention) was to warn its employees of the dangers of driving home at the end of their tours. The travel plan was simply one of the ways in which the appellant could bring home the risk of driver fatigue to its employees, training being another.

29. [82]

    What Gleeson CJ said in Rosenberg v Percival at [16] is apposite in the present case:

30. [83]

    In the present case, the “strong reason” for Mr Matinca to drive straight home was his desire to get home as quickly as possible, notwithstanding his knowledge about the risks posed by fatigue to safe driving.

31. [84]

    For the reasons given above, grounds 9, 10 and 11 have been made out.

Conclusion

1. [85]

   For the reasons given above, the appeal ought be allowed. The appellant has sought that the question of costs be reserved.

Proposed orders

1. [86]

   For the reasons given above, I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the judgment of Campbell J ordered on 30 June 2022 and, in its place, order judgment for the defendant.

   3. (3)

      Make no order as to the costs of the second respondent.

   4. (4)

      Otherwise reserve the costs of the appeal and of the hearing before the primary judge.

   5. (5)

      Grant leave to the appellant to make an application with respect to costs, such application to be made in writing by notice of motion, together with any affidavit in support and submissions to be relied upon within 14 days of the date of these orders, following which directions will be made as to any responses.