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Judge says driver fatigue is not wilful misconduct

17th May 2007, Page 14
17th May 2007
Page 14
Page 14, 17th May 2007 — Judge says driver fatigue is not wilful misconduct
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TNT global wins its appeal against a court ruling that said it was responsible for damage caused by a subcontractors driver. Mike Jewell reports.

TNT GLOBAL HAS successfully appealed against a judgment at Manchester High Court that i t was liable for damage caused to a load of pharmaceuticals being carried by a subcontractor on behalf of Denfleet International after a driver fell asleep at the wheel.

The drugs were lost when the vehicle carrying them crashed on the Autostrada del Sole near Milan and burst into flames.

In the original hearing, Judge Harry Kershaw ruled that the damage had been caused by the wilful misconduct of the driver.He pointed out before the driver fell asleep at the wheel he would have realised that he was sleepy so his decision to keep on driving constituted wilful misconduct.

The value of the load was £300,000 but in the Court of Appeal Lord Justice Waller said Den fleet would only be entitled to about £1,000 in compensation based on the weight of the goods, unless the damage was caused by wilful misconduct. He did not accept that a driver who continued to drive when he felt sleepy was necessarily guilty of wilful misconduct.

Anyone who drove beyond his permitted hours was committing a deliberate breach of the safety regulations, he added, but there was no evidence of that in this case.

The key question was whether the lorry driver knew that his ability to drive was significantly impaired — and Waller decided that the driver's admission that he had fallen asleep was not enough to justify that conclusion.

Waller said it was one thing to find that the driver was unlikely to have fallen asleep without some prior warning, and that he must have been aware that tiredness could lead to accidents.

However, it was quite another matter to find that the warning signs in this case must have been enough to make him realise that he was not tit to drive, and that his failure to stop was the result of a deliberate or reckless disregard of his unfitness to drive, rather than a misjudgement.

• TNT has opened a E7m depot in Leyland, LIMCS, creating more than 100jobs.

The 10-acre site at Moss Side Park was opened by South Ribble MP David Borrow; it is the biggest operation in TNT's national network of 60 depots with 145 staff and 67 loading bays.

Depot general manager Shane O'Donnell says: "TNT's nearby Ramsbottom depot has been exceeding its capacity for some time and it was essential that a new site was found to cater for a substantial increase in our business in the North-West."


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