A North Queensland truck driver who crashed a fully-laden B-double after answering a mobile phone call has been ordered to pay more than $545,000 in damages to the transport company which hired him.
Cairns District Court Judge Dean Morzone QC this week ordered William Harold Austin Dowling to pay Blenner’s Transport and Truck Hire (Blenner’s) almost $510,000 for damage caused to a B-double truck and trailers, as well as more than $36,000 worth of bananas which were destroyed when the vehicle overturned south of Ingham, 110km north of Townsville, on 18 September 2019.
The court was told that closed circuit television (CCTV) footage of Dowling’s actions in the moments leading up to the crash was recorded on the prime mover’s in-cabin cameras – including showing Dowling reach for his mobile phone and answer it seconds before the crash.
Under Queensland’s Transport Operations (Road Use Management – Road Rules) Regulation it is illegal to hold a mobile phone in your hand or have it resting on any part of your body, such as your lap, when driving.
Judge Morzone, in a nine-page judgement delivered on Monday, said Blenner’s had sued Dowling because he had crashed its fruit-laden truck while answering his mobile phone.
Dowling, in defending the suit, said his judgment – in taking the call – was impaired due to a culmination of fatigue, Blenner’s “system of progress calls, and/or the absence of an integrated hands-free phone device in the truck”.
“(Dowling) also argues that, but for the overweight and unbalanced load, and … the truck’s malfunctioning lane departure warning system, he could have righted the truck without crashing,” Judge Morzone said.
“I have found that (Dowling) … owed a duty of care to (Blenner’s) and that he breached that duty by illegally using his mobile device, failing to pay due care and attention, and he lost control of the truck causing it to crash.”
Judge Morzone noted the case was particularly unusual and involved Dowling being employed by Labour Hire Qld, and not Blenner’s itself, to drive the truck on the day.
“It was in the course of his employment with Labour Hire Qld … as the hired driver, that (Dowling) in turn came into the possession of (Blenner’s) goods and truck,” he said.
“Accordingly, (Dowling) had a duty of care as a sub-bailee … (and) that duty was to take care to keep the truck and goods safe, and once the truck and goods are shown to have suffered damage while in his possession … (Dowling) has the burden of showing that the loss or damage occurred without his neglect, default or misconduct.
“This is an unusual case involving separate corporate entities with common principals behind them. Whilst, ordinarily, an employer is vicariously liable for the negligent, wrongful or criminal (acts of) its employee, there is no bar to an impacted third party suing the employee directly.”
As a result, there was no legal reason why Blenner’s could not sue Dowling for damages.
In relation to the incident, Judge Morzone said: “The laden truck was in a B-double configuration comprising a single prime mover towing two consecutive trailers. It was fitted with closed circuit cameras, and was technologically equipped to remotely monitor speed, location, rest stops and other fatigue-related data, and communication.
“At about 9.59 pm on 18 September 2019, as (Dowling) was driving the truck on the Bruce Highway … he received an incoming mobile phone call.
“What followed has been captured on the truck’s in-cabin cameras showing (Dowling) in the cab and the road ahead, as well as other displayed data, including the truck speed at the time.
“Having failed to connect to the incoming call with his Bluetooth earpiece, the footage shows (Dowling) looking down and up to the road for about second, and down to his mobile phone for one to two seconds whilst he held and swiped the phone with one hand, with his other hand on the steering wheel.
“As (Dowling) did this he allowed the truck to veer to the left of the road surface. The roadway falls away steeply. The CCTV footage records the speed at about 97 kmh. (Dowling) tried, but was unable, to right the truck back to the road pavement.
“The CCTV vision is lost as the truck continued off the side of the road, and rolled before coming to rest. The truck was severely damaged, the load of fresh fruit was destroyed, and (Dowling) suffered very serious injuries.”
The court was told Dowling was subsequently charged and convicted of driving while illegally using his mobile phone.
As a result of Dowling’s unlawful actions, Judge Morzone said he did not accept that any factor, other than Dowling’s neglect, default or misconduct by using his mobile phone, caused or contributed to the crash and that he failed to maintain due care and attention to competently manoeuvre and control the truck, and thereby breached his duty to take reasonable care to keep the truck and goods safe.
Dowling was ordered pay Blenner’s $545,312.25 plus interest.
Read the decision.