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Carriage by Road: Wilful Misconduct

TNT Global SPA -v- Denfleet International Limited

May 2007

TNT agreed to carry a consignment of pharmaceuticals by road from Italy to the United Kingdom and sub-contracted the Rome - Milan leg of the journey to a local carrier. At about 8.50 on the morning of 1st August 2002 the carrying lorry was involved in an accident about 20 miles south of Milan, as a result of which its cargo was destroyed. According to a brief statement given to the Italian police by the driver the crash occurred because he had fallen asleep at the wheel.

The value of the lost goods was £300,000. However, unless the loss was caused by wilful misconduct, the CMR provided the carrier with a limit of liability of only £1,000 - and the claim would have been time-barred.

Neither party called the driver to give evidence at the trial. The vehicle's tachograph was destroyed in the fire and, largely due to the delay before any allegation of wilful misconduct was made by the claimants, there were no records available relating to the time at which it had left Rome. There was thus no evidence as to how long the driver had been driving or when he had last taken a rest. The only evidence was his statement to the police that he had fallen asleep at the wheel.

Previous cases in this jurisdiction have emphasized that wilful misconduct has to be distinguished from negligence, even gross negligence. For wilful misconduct to be proved there must be either an intention by the driver to do something which he knows to be wrong or a reckless act committed by him (in the sense that he is aware that loss may result from his actions but proceeds without caring whether it will result or not). The critical question in this case was whether the driver knew that he was sleepy in time for him to stop driving.

There was, of course, no direct evidence. Nevertheless, the Mercantile Court judge who first heard the case concluded that a driver who fell asleep at the wheel must have appreciated that he was sleepy (before actually falling asleep) and that his decision to continue to drive in such circumstances was reckless and constituted wilful misconduct.

The Court of Appeal disagreed. In its view mere knowledge on the part of a driver that he was sleepy, accompanied by a decision to continue to drive, may be grossly negligent but does not constitute wilful misconduct. It considered that something more is needed to reach such a finding - for example, the driver's deliberate disregard of the regulations relating to driving time and rest periods or some evidence of erratic driving (such as hitting the side of the road) sufficient to demonstrate to the driver that he was unable to beat his sleepiness. It regarded the bare fact of the driver's admission that he fell asleep as insufficient to justify the conclusion that he must have known that his ability to drive was significantly impaired: his misjudgement of his fitness to drive was not the same as a deliberate or reckless disregard of his unfitness to drive. The carrier's appeal against the judge's finding of wilful misconduct was therefore allowed.

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