Australia: Truck Driver Personally Liable for Damage Caused After Using Phone While Driving

By Madeleine O’Connor © Barry.Nilsson. Lawyers November 19, 2021
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a driver looking at a cellphone while driving

​This decision out of Australia considers whether a truck driver owed a duty of care to a goods carrier and truck owner and whether that duty of care was breached by illegally using his mobile device, failing to pay due care and attention and losing control of the truck, causing it to crash.

At Issue

The main issue in this case involved the duty of care of a truck driver for damage caused to goods in the driver's possession.

The Background

The first and second plaintiffs, who were respectively goods carriers and truck owners, sued the defendant driver for 581,991 Australian dollars (approximately 432,093 USD) because he lost control and crashed a fruit laden truck while attempting to answer his mobile device.

The defendant, who was self-represented, was a professional truck driver with over 30 years of experience. He was employed by Labour Hire QLD Pty Ltd, which supplied his services to the plaintiffs. It was in the course of his employment that the defendant came into possession of the plaintiffs' goods and truck, making him a sub-bailee for reward with Labour Hire QLD Pty Ltd as the bailee.

On Sept. 18, 2019, the defendant was driving the truck on the Bruce Highway south of Ingham, when he received an incoming mobile phone call. What followed was recorded on the truck's in-cabin cameras. Having failed to connect to the incoming call with his Bluetooth earpiece, the footage shows the defendant looking down and swiping his phone with one hand, with his other hand on the steering wheel. As he did this, the truck that was travelling at a speed of about 97 kilometers per hour (approximately 60 miles per hour), veered to the left of the road where the shoulder of the roadway fell away steeply. The defendant tried to correct the truck but it rolled, severely injuring the defendant and damaging the truck and its contents.

The defendant argued that the plaintiffs breached statutory duties pursuant to the Work Health and Safety Act 2011 (Qld) and were contributorily negligent in putting the defendant under pressure to forsake rest breaks to meet driving schedules, failing to provide hands-free technology, failing to provide appropriate training to the defendant as to the correct action to be taken if he received a call while driving, failing to fit the truck with lane departure warning and prevention technology and ensure that the truck was not overloaded.

The Decision at Trial

The district court found that the defendant as a sub-bailee owed a duty of care to the plaintiffs and that he breached that duty by illegally using his mobile device, failing to pay due care and attention and losing control of the truck causing it to crash. As a result, the plaintiffs suffered loss and damage to the goods and the truck, which was foreseeable and not too remote.

It was held that the plaintiffs did not breach any duties to the defendant, and none of the allegations raised by the defendant caused or contributed to the crash.

The defendant was ordered to pay 545,312.25 Australian dollars (approximately 404,862 USD) in damages to the plaintiffs.

Implications

This case is unusual because while an employer is ordinarily responsible for the negligent or wrongful acts of its employee, there is no bar to an impacted third party suing the employee directly, which is what occurred in this case.

Madeleine O'Connor is an attorney with Barry.Nilsson. Lawyers in Brisbane, Australia. © 2021 Barry.Nilsson. Lawyers. All rights reserved. Reposted with permission of Lexology.

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