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 knowledge on the part of a driver that he was sleepy and a decision to continue to drive would constitute wilful misconduct.’ and ‘The state of mind of the driver who is sleepy and continues to drive is likely to be that he believes he will beat the sleep and be safe. A professional lorry driver is in a different position from an ordinary driver particularly because limits are set by regulations. He knows that the limits are set to avoid the risk of falling asleep, and if he deliberately ignores those limits he is guilty of wilful misconduct.’ The judge did not find the defendant to have driven in breach of regulations or to have had any other more specific indication that he was failing to control the tiredness. The appeal succeeded.
Judges:
Waller LJ VP, Tuckey LJ, Toulson LJ
Citations:
Times 11-May-2007, [2007] EWCA Civ 405
Links:
Jurisdiction:
England and Wales
Citing:
Mentioned – Horobin 1952
Barry J sought to define wilful misconduct through negligence as: ‘he took a risk which he knew he ought not to take.’ . .
Cited – National Semiconductors (UK) Ltd v UPS Ltd 1996
Longmore J sought to define the term ‘wilful misconduct’ as established by the authorities: ‘If I summarise the principle in my own words, it would be to say that for wilful misconduct to be proved there must be either (1) an intention to do . .
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 – Datec Electronic Holdings Ltd and Another v United Parcels Service Ltd and Another ComC 22-Feb-2005
The claimant sought damages for the loss of goods in transit under the care of the defendant. Andrew Smith J held as regards the burden of proof in an allegation of wilful misconduct: ‘I should add that I was properly reminded by counsel that the . .
Cited – Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd and Another CA 18-Apr-1997
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.
Negligence, Road Traffic
Updated: 10 July 2022; Ref: scu.251615