The NSW Court of Appeal recently handed down its judgment in Coalroc Contractors Pty Ltd v Matinca1, overturning the trial decision and finding the appellant not liable for the injuries sustained by a mine worker involved in a single vehicle accident travelling home from work. The decision builds on the principles established in Kerle v BM Alliance Coal Operations2 and demonstrates that the outcome in cases of this nature will turn on the facts, which are integrally connected to the analysis of factual causation.
In this alert, Partner Anna Hendry and Solicitor Estelle Sah outline the case and implications for future decisions.
Background
The plaintiff worked at a mine approximately 260km from his home. He worked 12-hour shifts every Friday, Saturday and Sunday, during which time he lived at a nearby caravan park. His practice was to drive home immediately after finishing his Sunday shift. He was injured while making such a journey in April 2016. His vehicle veered off the road and collided with a tree. He brought a claim for damages against his employer, on the basis that the accident was caused by fatigue. Significantly, the plaintiff had no recollection of the accident.
Trial decision
The trial judge found Coalroc negligent on the basis that:
- the accident was caused by a combination of factors including speed, driving conditions and momentary inattention caused by fatigue (the latter being the most significant);
- Coalroc’s duty of care to the plaintiff included a duty to manage the risk of a work-induced fatigue injury on his journey home from work. Coalroc breached that duty by failing to require the plaintiff to submit a personal travel management plan for approval; and
- causation was established on the basis that an appropriate travel management plan would have led to the plaintiff taking a 20 to 30 minute rest stop, which would have prevented the accident.
The court made a 30% reduction for contributory negligence, noting that the plaintiff failed to “take a break or to otherwise heed what must have been at least incipient tell-tale signs of fatigue”.
Damages were awarded in the sum of $1,130,782.00 plus costs.
Appeal decision
Coalroc successfully challenged the trial outcome on a number of grounds, most significantly:
- Fatigue not a cause of the accident: The appeal court found that the evidence had not established fatigue as a cause of the accident. It noted fatigue was only one of many possible explanations for the plaintiff’s “momentary inattention”. It noted that although fatigue increased the risk of momentary inattention, to discharge his onus of proof, “the plaintiff had to prove that it was the probable cause of the accident and not merely a possible cause”.
- Travel plan duty not owed: The appeal court overturned the primary judge’s finding that Coalroc owed 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, noting it was “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”.
- Factual causation not established: The appeal court noted that while the plaintiff had given evidence that he would have provided a travel plan for approval had Coalroc demanded it, he was unable to give any evidence regarding what he would have put in that plan, whether he would have complied with it, or whether such compliance would have prevented the accident. The court emphasised “significant subjective matters which tended against his either proposing or complying with such a plan”, particularly the plaintiff’s explicit evidence during cross-examination that he wished to drive home directly after the Sunday shift. The appeal court also declined to accept the primary judge’s finding that a 20 to 30-minute rest break could have prevented the accident, holding “a decrease in risk is no more capable of proving negative causation … than an increase in risk is capable of proving causation positively”.
Differences to Kerle and key takeaways
The appeal court referenced Justice McMeekin’s findings in Kerle v BM Alliance Coal Operations, which involved a similar factual matrix. It was observed that in that case, the plaintiff’s employer was held liable for a fatigue-induced car accident notwithstanding that the plaintiff had taken a half-hour rest break two hours into his journey home “which was, as the outcome demonstrated insufficient to offset the effects of fatigue in the circumstances of that case”.
The plaintiff in Kerle succeeded because the court was satisfied there was sufficient evidence that his accident was caused by fatigue and because the content of the duty of care proposed by the plaintiff (being a duty to provide training regarding fatigue and fatigue management) was one which the court found would more likely than not have prevented the accident. In Matinca, the court was unable to consider the sufficiency of Coalroc’s fatigue training because the plaintiff did not allege a breach of duty in that respect.
Despite the different outcomes, employers can be certain that fatigue management, particularly in a drive-in-drive-out scenario, is essential to worker safety and that the litigation in this arena will be lengthy.
For more information or to discuss your own circumstances please contact HopgoodGanim’s Insurance team.
1. Coalroc Contractors Pty Ltd v Matinca (No 2) [2023] NSWCA 127
2. Kerle v BM Alliance Coal Operations Pty Limited [2016] QSC 304