The employee collected the M.D. of the company at 4am. The two shared the 3½ hours driving to the first stop. At around 2.30 pm the M.D. then drove 122 miles to the second job at around 6pm. They left at 7pm with the employee driving home.
He complained he was knackered and queried whether they would find somewhere to stay overnight.
However it was decided they would travel home. The MD slept on the way. There were two opportunities for the employee to swap over but he carried on. Eventually the evidence suggests he fell asleep but was also speaking on his mobile phone. He braked hard and lost control of the van, which overturned. He was flung out as he was not wearing a seatbelt and suffered severe spinal injury.
He brought a claim of negligence and breach of statutory duty because the employer had caused / permitted him to drive when too tired.
The outcome of the case was that the employer was found liable but the level of damage was reduced by 33% due to the contribution to the blame for the accident by the employee himself.