Netstal-Maschinen v. Dons Transport

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Netstal-Maschinen AG and Securitas Bremer Allgemeine Versicherung AG v Dons Transporte AG, Stewart Height and David O’Neill
English Mercantile Court, Central London: Hallgarten J.: 26 May 2004
James Turner, instructed by Pritchard Englefield, for the Claimants
Nevil Phillips, instructed by Kay Pysden previously of Davies Lavery, for the Defendants
In this case cargo interests and their insurers sued a road carrier for damage to cargo that had occurred when the tractor/trailer unit was involved in an accident on a motorway in Belgium. The accident was caused by the driver swerving to avoid a wild boar lying dead on the inner carriageway, he believing it at the time to be a human being. The defendants successfully upheld a defence under Article 17.2. of the CMR Convention, which provides that the carrier is not liable for damage caused through circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.

DMC Category Rating: Developed

This case note is contributed by Kay Pysden, of the London law firm Pysdens.

Early in the morning on 17 October 1998, Mr O’Neill, the Third Defendant, who was the driver of an articulated DAF tractor unit with a Montracon semi-trailer, was involved in an accident. The accident occurred on the E411 motorway (a dual carriageway) in Belgium during the road carriage of an injection moulding machine from Naefels in Switzerland to the UK. The machine was valued at just under CHF341,500. The accident occurred when the driver suddenly saw what he took to be a human body lying in his lane. It was later found that in fact it was the body of a wild boar weighing some 80 kg, which had been killed in a collision with a Mitsubishi car some moments earlier. What had happened was that the impact of the boar had been such as to completely disable the Mitsubishi including, in particular, its lighting system.

Having successfully negotiated the first hazard, the driver moved into the offside lane and was immediately confronted with a second obstacle – the occupants of the unlit Mitsubishi standing behind their stricken car in his path trying to attract his attention to their car stranded in the offside lane. The driver’s response was to brake sharply and then move back into the inside lane. This caused the brakes to lock so that the tractor-trailer combination jack-knifed, went out of control and the trailer collided with the central reservation.

The force of the collision caused the machine to break free and topple on to the road, as a result of which it suffered irreparable damage. The Belgian police who examined the tachometer found that the driver had not exceeded the prescribed driving speeds.

The main issue in the case was whether the accident arose through circumstances which the driver could not avoid and the consequences of which he was unable to prevent. It was submitted on behalf of the claimants that the driver could, and should, have avoided the circumstances which caused the accident by not driving at night , or driving at a speed of less than 55 mph, or driving for less than five hours at a stretch.

Judge Hallgarten, however, rejected the claimants’ criticisms and ruled that the driver did not fall short of the standard which could be described as that of utmost care. He considered that the utmost care did not require the driver of a heavy goods vehicle to drive only during the day, or to travel at a speed other than that at which he was in fact traveling and which was well within the prescribed limits, or to drive for some lesser period of time than the hours permitted by the EC Regulation 3820/85 regarding driving hours. The judge thought that such submissions were "unrealistic" and would lead to "absurdity".

The leading English case on the construction of Article 17.2 is the decision of Mustill J (as he then was) in Silber v Ireland Trucking [1985] 1 Lloyd’s Rep 243. Judge Hallgarten reviewed the case stating that it had "plainly stood the test of time" but needed to be approached with some degree of caution. He referred to the "test" set out by Judge Mustill that "the carrier is exempt from liability if he proves either that he exercised a high degree of care or that the loss would have happened even if he had exercised a high degree of care". He went on to set out Judge Mustill’s definition of high degree of care as "somewhere between on the one hand a requirement to take every conceivable precaution, however extreme… and on the other hand, a duty to do no more than act reasonably in accordance with prudent current practice". Judge Hallgarten noted that Judge Mustill expanded on his definition later in the same paragraph to include taking account of the "financial practicability of the suggested precautions".

The judge clarified the ‘caution’ referred to above as follows:

  1. "The formulation of the relevant test should not be approached as if it represented the wording of a statute: it was plainly tailored to the case in question.
  2. Silber, and indeed other UK cases, to which I was referred, all related to robberies, hijackings and the like, looking at the range of measures which might have been available to deter or resist criminal conduct by a third party. I venture to doubt whether Judge Mustill would have used quite the same formulation had he been confronted with a road traffic accident.
  3. As I see it, the utmost care test may also apply when one gets to the causation stage".

Having applied Silber, Judge Hallgarten concluded that there was no suggestion in any of the relevant case law that the driver was somehow required to exercise a greater degree of care than that which would ordinarily apply in relation to the vehicle, route, conditions or carriage in question.

The final question to answer was whether, even if the driver had taken the steps suggested by the claimants, the same result would have occurred. Judge Hallgarten thought that the driver "exercised remarkable skill in avoiding the boar, the men and, to all intents and purposes, the Mitsubishi", and that even if he had travelled at 45 mph, the vehicle would have still suffered a serious accident. The driver would not, in the agony of the moment, have been able to exercise what was described as "controlled braking".

Judge Hallgarten accepted the evidence of the defendants’ expert that the driver would have needed to be traveling at a speed "grossly below 45 mph" in order to take effective avoiding action. The accident would, therefore, not have been avoided had the driver been travelling at 45 mph. He also found that the likelihood was that, at the least, very serious damage would have eventuated if an accident had occurred at the lower speed suggested by the claimants. Consequently, he concluded that the claim failed.

This is a helpful judgment in that it is precedent for the interpretation of Art.17.2 of the CMR Convention in relation to an incident other than a hijacking or robbery. It reinforces Silber as the leading English authority in the area and makes it clear that whilst drivers are required to exercise the utmost care, they are not required to go to absurd lengths to avoid an accident. The judgment also raises the issue of causation and the applicability of the utmost care test to this issue also. Thus, in this case, one had to ask, first, whether, assuming that the driver had exercised the utmost care, the circumstances could have been avoided, and secondly, assuming that they could not, whether the driver then responded to them with the utmost care. To be exonerated, the defendant would have to win on both counts, as he did in this case.



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