Two important recent judgments concerned the question whether a driver who falls asleep at the wheel is liable for wilful misconduct under Article 29 CMR. Fortunately, in both cases the driver survived the accident.

a) TNT Global SPA v Denfleet International Ltd (England and Wales Court of Appeal, 2 May 2007)

Helen Arabanos, Claims Handler in the TT Club London office, comments:

"In TNT v Denfleet, the driver had fallen asleep at the wheel and gone off the road, causing the total loss of the cargo. The trial judge had made a finding of wilful misconduct based on the fact that the driver 'did not pass directly from alertness to sleep, but was aware that he was sleepy and made a conscious and deliberate decision to continue his journey.' The Court of Appeal drew attention to the particular facts of his case: that the tachograph had been destroyed in the fire, that the claim had not been presented until two and a half years after the incident, at which time all records maintained by the carrier had been routinely destroyed, and that there was no evidence that the driving limit had been exceeded (as it had been in Sidney G. Jones Ltd v. Martin Bencher Ltd ([1986] 1 Lloyd's Rep 54). Without this relevant evidence, the Court of Appeal held that a mere 'finding of fact as to the state of mind of the driver does not go far enough to support a conclusion of wilful misconduct'.

In accordance with Barry J's landmark case of Horabin v. B.O.A.C. (1952) which provides that 'the plaintiff must satisfy you (.) that the person who did the act knew that he was doing something wrong, and knew it at the time, and yet did it just the same or alternatively that the person who did the act did it quite recklessly (.)' a state of mind of intent or recklessness is the important factor in deciding wilful misconduct. In TNT v. Denfleet the Court of Appeal decided that this intent or recklessness had not been sufficiently demonstrated, i.e. the driver's awareness that he was sleepy was not enough, on its own, to amount to wilful misconduct. However, the Court of Appeal emphasised that a 'professional lorry driver is in a different position from an ordinary driver' and that, in such cases, if 'he becomes aware that he cannot beat sleepiness, he would become guilty of (.) wilful misconduct.'"

b) German Bundesgerichtshof (Federal Supreme Court), judgment of 21 March 2007

When the 19 year old driver T drove on the German motorway on 7 December at 4.50pm, he hit another lorry in front of him. The other lorry had his warning lights on as he was at the end of a traffic jam. Driver T hit this lorry at a speed of 50 km/h (about 30 mph) without attempting to brake. It was in dispute between the parties whether on the days before the accident the driver observed the rest times required by law. When deciding whether driver T's conduct leading up to the accident amounted to the German equivalent of 'wilful misconduct' in the sense of Article 29 CMR, the Bundesgerichtshof applied the test of section 435 of the German Commerical Code (HGB), i.e. examined whether the driver caused the accident '(with intent) or recklessly with knowledge that damage would probably result'.

The Bundesgerichtshof held that the court below (the Higher Regional Court of Karlsruhe) did not commit an error in law by finding that the driver fell asleep was not the only possible explanation of the accident: instead, the accident could also have been caused by the driver's lack of concentration, by an external event which distracted the driver from the traffic or even by a sudden disturbance of the driver's consciousness. The Bundesgerichtshof further found that, even if it had been established that the accident was caused by the driver nodding off, a driver acts only then with gross negligence (as required by section 435 HGB), if it can be established that he knowingly ignored clear signs of his fatigue ('Übermüdung'). In support of this principle, the court referred to his two judgments of 5 February 1974 and 1 March 1977.

c) Comparison

In both cases, the driver's conduct did not amount to wilful misconduct under Article 29 CMR, with the result that the carriers avoided liability for the full value of the cargo. Evidence on the precise circumstances leading up to the accidents was lacking. In practice, it might be difficult to prove a driver's awareness that he was not merely sleepy, but unfit to drive (English law) or that he 'knowingly ignored clear signs of this fatigue' (German law).

However, another - arguably more important - conclusion should be drawn from the two cases. In TNT Global SPA v Denfleet International Ltd, cargo interests argued that 'the distinction which the carrier seeks to draw between being tired and being so tired as to be in danger of crashing does not arise in the context of responsible driving. One a driver is tired, his ability to drive is impaired and he becomes a source or risk to himself and others'. There is force in this. Helen Arabanos emphasizes: "the important message from the two cases is that of safety and awareness. Compliance with driving hours and rest time regulations is of utmost importance and will make a difference in deciding

The full text of these two judgments can be found under the following web links:

• TNT Global SPA v Denfleet International Ltd, England and Wales Court of Appeal, 2 May 2007 http://www.bailii.org/ew/cases/EWCA/Civ/2007/405.html
  
  
• German Bundesgerichtshof, judgment of 21 March 2007 (in German language http://www.bundesgerichtshof.de/

(first go to 'Entscheidungen', then enter the date of the judgment '21.3.2007') cases of wilful misconduct. As ever, extra care should be taken if drivers feel that their alertness is impaired due to tiredness."