The defendant’s driver had taken a consignment of shoes to Spain, where they were stolen. The plaintiff alleged his gross negligence amounted to ‘wilful misconduct’ so as to disapply an exemption clause.
Held: Whether a bailee’s acts constituted wilful misconduct is dependent upon the standard ordinarily expected from someone in that position. Here the judge was entitled to find wilful misconduct on the driver’s part. The broker had been liable to insure the goods and the liability was not limited by the convention.
Beldam LJ said: ‘Further a person could be said to act with reckless carelessness towards goods in his care if, aware of the risk that they may be lost or damaged, he nevertheless deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so.’
Brooke LJ discussed the burden of proof in such a case, saying that the trial judge: ‘should also have directed himself that since a charge of wilful misconduct was a serious charge to make, the evidence ought to have satisfied the degree of probability appropriate to the seriousness of the charge before it was appropriate to find it proved.’
Judges:
Beldam LJ, Brooke LJ
Citations:
Times 12-May-1997, [1997] 2 LL Rep 369, [1997] EWCA Civ 1454
Jurisdiction:
England and Wales
Citing:
Cited – Sheffield v Pickfords Limited and Pickfords Removals Limited CA 11-Feb-1997
The defendants had contracted to transport goods for the plaintiff. The goods had been left at empty premises and were damaged or stolen. The defendant sought to rely upon their clause excluding liability.
Held: The reasonableness of a . .
Cited – Graham v Belfast and Northern Counties Railway Co 1901
The court had to construe the phrase ‘wilful misconduct’.
Held: ‘Wilful misconduct in such a special condition means misconduct to which the will is party as contradistinguished from accident, and is far beyond any negligence, even gross or . .
Cited – Forder v Great Western Railway Company 1905
The court construed the phrase ‘wilful misconduct’.
Held: The court adopted the definition given in Graham, Lord Alverstone CJ adding: ‘The addition which I would suggest is, ‘or acts with reckless carelessness, not caring what the results of . .
Cited – Jones v Mrtin Bencher Ltd 1986
A deliberate disregard by a driver of EEC Regulations which govern the length of time that it was permissible for him to drive without a break amounted to ‘wilful misconduct’ when he fell asleep at the wheel and the goods he was carrying were . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Texas Instruments Ltd v Nason (Europe) Ltd 1991
A carrier, knowing of the high risk of theft from the area, left a trailer unattended in a car park in east London. His behaviour was held to be wilful misconduct allowing the insurance policy to be ineffective. . .
Cited – Keeton Sons and Co Ltd v Carl Prior Ltd CA 14-Mar-1985
The test of whether a clause has been incorporated into a contract is ‘Has reasonable notice of the terms been given?’. . .
Cited by:
Cited – TNT Global Spa and Another v Denfleet International Ltd and Another CA 2-May-2007
The driver of a lorry carrying the claimant’s goods was said to have fallen asleep at the wheel, and the cargo damaged in the accident. The carrier appealed a finding of liability for wilful misconduct.
Held: ‘I am unable to accept that mere . .
Cited – Scheps v Fine Art Logistic Ltd QBD 16-Mar-2007
The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum . .
Lists of cited by and citing cases may be incomplete.
Negligence, Contract, Agency
Updated: 06 November 2022; Ref: scu.141850
