TNT Global SPA & Anor v Denfleet International Ltd & Anor

Wilful misconduct for the purposes of the Convention on the Contract for the International Carriage of Goods by Road requires more than a conscious but negligent act. The actor must know that the conduct is wrong, or be recklessly indifferent to whether it is wrong, and must appreciate the additional risk created for the goods.

A professional driver’s awareness of ordinary sleepiness, followed by a decision to continue, does not alone establish that state of mind. Falling asleep at the wheel may show serious misjudgement, but it does not prove that the driver knew that continued driving was unsafe. Evidence of a deliberate breach of drivers’ hours rules, or of warning signs showing that the driver could no longer overcome sleepiness, may support such a finding.

TNT contracted to carry Denfleet’s pharmaceuticals from Naples to Elstree. Its subcontractor’s lorry crashed near Milan after its driver fell asleep, and the cargo was destroyed by fire.

The value of the cargo was agreed at £300,000. Under Articles 29 and 32 of the Convention on the Contract for the International Carriage of Goods by Road, Denfleet could avoid both the ordinary compensation limit and the one-year limitation period only by proving wilful misconduct. The tachograph and relevant driving records were unavailable, and the driver was not called. The only direct evidence was his statement that he had fallen asleep.

His Honour Judge Kershaw QC held that the driver had knowingly continued while sleepy and was therefore guilty of wilful misconduct. TNT appealed on the sufficiency of that finding.

1. Appeal allowed unanimously. Waller LJ, with whom Tuckey LJ agreed, held that the judge’s finding did not establish wilful misconduct. Toulson LJ gave concurring reasons and reached the same conclusion.

2. Wilful misconduct under Articles 29 and 32 of the Convention on the Contract for the International Carriage of Goods by Road requires an intention to do what the actor knows to be wrong, or reckless indifference to whether it is wrong. In the latter case, the actor must appreciate that the conduct creates, or may create, an additional risk to the goods. Mere fault and a conscious decision do not suffice.

3. The judge was entitled to infer that a driver who falls asleep is likely to have received some warning of tiredness. That inference showed serious misjudgement. It did not, without more, establish that the driver knew that his capacity to drive was significantly impaired, knew that he ought to stop, and deliberately or recklessly disregarded that knowledge.

4. A driver who deliberately exceeds statutory driving-hours limits knowingly breaches safety rules intended to prevent this risk. Equally, prior events such as nodding off or striking the roadside may demonstrate that the driver knows that sleepiness cannot be overcome. Either circumstance may support wilful misconduct. There was no evidence of either circumstance here.

5. The absence of evidence about driving hours, rest periods or erratic driving meant that no adverse inference could properly supply the missing state of mind. The judge had gone as far as the evidence permitted, but awareness of sleepiness alone was insufficient. Denfleet therefore failed to establish wilful misconduct, with the consequence that the ordinary CMR limitation and compensation provisions applied.

• Court of Appeal (Civil Division) Allowed TNT’s appeal: [2007] EWCA Civ 405.
• QBD, Manchester Mercantile Court His Honour Judge Kershaw QC, on 5 July 2006, held that the driver’s conduct amounted to wilful misconduct.