Court of Appeal

Published May 11, 2007

Denfleet International Ltd v TNT Global SPA

Before Lord Justice Waller, Lord Justice Tuckey and Lord Justice Toulson

Judgment May 2, 2007

A finding of wilful misconduct was not supported when there was no evidence other than that a professional lorry driver had fallen asleep at the wheel.

The Court of Appeal so stated when allowing the appeal of TNT Global SPA against a decision of Judge Kershaw, QC, at Manchester Mercantile Court on July 5, 2006, that damage to Denfleet International Ltd’s cargo of pharmaceuticals carried by lorry by TNT, through a subcontractor, was caused by the wilful misconduct of the lorry driver.

Mr Michael Nolan for TNT; Ms Jo Cunningham for Denfleet.

LORD JUSTICE WALLER said that the first matter to be addressed was what was the relevant state of mind that had to be established if a driver had fallen asleep at the wheel and was to be found to have been guilty of wilful misconduct?

The judge was unassisted by expert evidence and had simply to make findings by reference to his own experience and the presumptions on which cases in a different context had been decided.

He was of the view that a driver who fell asleep at the wheel would, prior to falling asleep, have appreciated that he was sleepy. It was the knowledge that he was sleepy and his deliberate decision to continue to drive when he knew he was sleepy that constituted wilful misconduct.

His Lordship was 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.

Although it was fair to say that people who fell asleep at the wheel would have had warning signs before they fell asleep, and although it was grossly negligent to ignore those warning signs, that negligence was in failing to appreciate that the driver could not, whatever he believed, defeat the sleepiness.

The state of mind of the driver who was sleepy and continued to drive was likely to be that he believed he would beat the sleep and be safe.

A professional lorry driver was in a different position from an ordinary driver particularly because limits were set by regulations. He knew that the limits were set to avoid the risk of falling asleep, and if he deliberately ignored those limits he was guilty of wilful misconduct: see Jones v Martin Bencher([1986] 1 Lloyd's Rep 54).

If something had demonstrated to the driver that he could not beat the sleepiness, such as hitting the side of the road, again because he became aware that he could not beat sleepiness, he would become guilty of misconduct, indeed wilful misconduct.

The judge went as far as it was legitimate on the evidence for him to go, but his finding of fact as to the state of mind of the driver did not go far enough to support a conclusion of wilful misconduct.

Lord Justice Tuckey and Lord Justice Toulson agreed.

Solicitors: Halliwells LLP, Manchester; Hill Dickinson LLP, Manchester.

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