How can a court decide on what – among several competing factors – was the cause of a single vehicle accident in the absence of any eye-witness accounts and where the driver has no recollection of what happened?
In April 2016 Troy Matinca was near the end of a 2.5 hr commute from his workplace when on a sweeping right-hand curve, his vehicle crossed the carriageway to the right, side-swiped a tree and then crossed back to collide head-on with another tree on the opposite side.
The serious brain injury he sustained was accompanied by multiple facial fractures; a degloving injury of the right arm; and fractures from T1 to T7 of his spine.
Matinca had just completed a weekend “tour” working three 12 hour shifts from 6 a.m. and 6 p.m. Friday to Sunday as an underground coal miner at the Ulan West Coal Mine in the upper Hunter Valley.
He had set off in his Toyota Prado just after 6pm and was en route to his home at Mt Hutton in Lake Macquarie some 270 km distant from the mine, not much further on from where the accident happened.
He sued Coalroc Mining Services claiming the accident was caused by work-induced fatigue occasioned by the nature and conditions of his “drive-in, drive-out” employment.
Coalroc was negligent – he contended – in failing to take precautions to manage the risk of a fatigue-induced traffic accident on his journey home at the end of the “tour”.
Damages were agreed at $1.6 mil but liability and causation were fiercely contested.
Matinca relied for his success, on the decision of the Supreme Court of Queensland concerning another “drive-in, drive-out” coal miner who had suffered serious injury in a single vehicle collision as a result of work induced fatigue during his 430 km drive home to Monto from the Norwich Park mine.
In that case (Kerle v BM Alliance Coal Operations Pty Ltd  QSC 304) Justice Duncan McMeekin ruled in favour of the miner on the basis that the particular risks emanated from his work activities and having to drive long distances in response to the demands of his employment.
But unlike that driver, Matinca could not recall any of the circumstances or provide any explanation for the accident by reason of retrograde and posttraumatic amnesia.
Coalroc contended that speed and a wet, slippery road surface were equally likely to have caused the accident.
Despite the absence of direct testimony of the events, Justice Stephen Campbell – adjudicating the contest in in the Supreme Court of NSW – received “a surprising amount of reliable evidence for the objective determination of what happened”.
Respiratory and sleep physician Anup Desai swore that fatigue induced accidents often involved a sole-occupant vehicle running off the road with no evidence of braking or other preventative action.
In his view the circumstances of the accident suggested driver fatigue “and that he fell asleep”.
The need for sleep and “sleep drive” – he attested – is part of human physiology “leading a person to sleep when an appropriate level of fatigue has been reached”.
Traffic engineer Nigel McDonald concluded that fatigue was the “likely cause” and explained that fatigue was a failure in cognitive processes not necessarily involving the driver falling “limp on the steering wheel ”.
His colleague Grant Johnston was of the view that fatigue could not be “isolated as the primary causal factor” and was “at best” one of a number of contributing factors, including speed and roadway conditions.
He calculated that the miner drove at 20 kph above the average speed for the journey and in excess of speed limits.
His Honour had to consider how – when the cause of the accident was multifactorial – to apply the onus of proof in cases that depend wholly upon circumstantial evidence.
He faulted Johnston’s efforts to try to isolate a single factor as being more than 50% responsible for the accident.
“This is not the legal standard in the application of the law of negligence to the circumstances,” he observed. “The common law test is to ask whether work induced fatigue caused or materially contributed to the accident”.
It was enough – he decided – that Mr Matinca proved circumstances appearing from evidence which support, “as a definite inference and more than a mere conjecture or surmise”, the finding for which he contends.
“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,” Justice Campbell concluded.
“Of these I think work induced fatigue the most significant” and constituted a very substantial and foreseeable material contribution to the occurrence of the accident.
The scenario he accepted was not one where the driver had actually fallen asleep at the wheel but one “where his muscles have completely relaxed and his grip on the steering wheel has been released”.
The miner’s failure however to sleep over night before the drive home or to “otherwise heed what must have been at least incipient tell-tale signs of fatigue” warranted an apportionment of contributory negligence of 30%.
Matinca v Coalroc (No 5)  NSWSC 844 Campbell J, 30 June 2022 Read case