His employer, Coalroc Contractors Pty Ltd, was found negligent for failing to take precautions to manage the risk of a fatigue-induced traffic accident on his way home from a weekend working three 12-hour shifts.

Troy Matinca was close to his Mt Hutton home, driving south along Macquarie Road at Warners Bay on Sunday, April 17, 2016, when he failed to negotiate a corner, side-swiped a tree, crossed back to the other side of the road and collided head-on with another tree in the scrub 18 metres away from the bitumen.

It took emergency services an hour to cut him from the car. His right arm was de-gloved, and he suffered a traumatic brain injury, as well as a fractured skull, spinal and facial fractures, and other injuries.

It was argued in the Supreme Court that his accident was caused, or at least significantly contributed to by work-induced fatigue due to the nature and conditions of his employment, which extended to the drive home.

Coalroc argued that its duty ended when Mr Matinca drove his Toyota Prado SUV onto the Golden Highway, and in any case that even if fatigue was a relevant legal cause, and its duty extended that far, it was not negligent given the procedures it had adopted to manage that risk.

Coalroc denied that work-induced fatigue was a "legal" cause of the accident, because speed and driving conditions had not been excluded as the cause. If Mr Matinca's case was successful, damages must be reduced due to his failure to take reasonable care for his own safety on the journey home.

Mr Matinca had worked as a coal miner since 2004 when he started working for Coalroc in 2016. Coalroc was engaged by Ulan West Operations to supply underground mining services.

The mine was 270 kilometres from Mr Matinca's home, and the weekend roster involved three shifts from 6am to 6pm each Friday, Saturday and Sunday.

His practise was to go to bed about 8pm on the Thursday night, and leave at 2am to make the drive which took around three hours and 15 minutes. Once there, he would share a cabin with a workmate at a caravan park in Mudgee, a 45-minute drive from the mine, then leave after work on Sunday night.

Dr Anup Desai, a specialist respiratory and sleep physician, gave evidence saying that "driver fatigue" was a general term and it included drowsiness, sleepiness, impaired vigilance and inattention as well as falling asleep.

The circumstances of Mr Matinca's accident suggested that he fell asleep, given there was no evidence of braking or other evasive action, Dr Desai said. His propensity for fatigue began after getting up at 2am on the Friday morning, and he would have become progressively and cumulatively partially sleep deprived by his routine over the next three days.

A short nap of less than 30 minutes before or during his journey home would have reduced his driver fatigue, Dr Desai said.

"[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"," he said.

Part of Coalroc's procedures for managing worker fatigue, a recognised risk, was a requirement for "drive-in/drive-out" workers to submit a personal travel management plan at the start and the end of their shift 'tour', which would be reviewed by the individual's manager. It would set out the "controls" they would put in place to ensure they present "fit for work", and not tired.

Travel time was also monitored via the plans, but Mr Matinca said he had not seen the travel plan, had not been asked to fill one in, and was never supplied with one.

Justice Joseph Campbell said that Coalroc would have foreseen that its system of work involved a risk of work induced fatigue-related injury to Mr Matinca on his way home, including that he could be injured in a traffic accident.

To manage that risk, Coalroc should have insisted on Mr Matinca provided a personal travel management plan for consideration and approval, Justice Campbell said.

"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," he said.

"It also served to reinforce the training each coal miner 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.

"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 ... "

Mr Matinca would have been refreshed, and probably would have made it home safely, he said.

Coalroc was found negligent, an apportioned 70 per cent responsible, with Mr Matinca found to have had "contributory negligence" of 30 per cent .

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