In Blenner’s Transport & Anor v Dowling  QDC 249 (8 October 2021), the District Court considered whether a truck driver who used his mobile phone while driving and subsequently rolled the fruit-laden vehicle was liable for negligence.
The plaintiffs owned and operated a transport business. The first plaintiff carried fruit across Australia, and the second plaintiff owned the prime mover, trucks and trailers used by the first plaintiff to transport the goods.
The transport operations conducted by the plaintiffs relied on a third company, Labour Hire Queensland Pty Ltd, which contracted with the first defendant to supply labour in the form of drivers. Labour Hire Queensland had employed the defendant for this purpose. The defendant was a professional truck driver with over 30 years’ experience.
Labour Hire Queensland supplied the defendant to drive the truck and perform duties at the direction of the plaintiffs. Once hired, the defendant undertook an online induction, and completed the required fatigue management training. The induction material included a provision for disciplinary action for mobile phone use while driving. The defendant took his day-to-day instructions from the plaintiffs.
On 18 September 2018, the defendant was driving the plaintiffs’ B-Double truck on the Bruce Highway, south of Ingham. He had received an incoming mobile phone call. Failing to connect to the incoming call through his Bluetooth earpiece, the cabin truck footage showed the defendant looking up and down at the road and also his phone, for one or two seconds, while he held and swiped the phone with one hand. His other hand was on the steering wheel.
As he did this, it allowed the truck to veer to the left of the road surface. The roadway fell away steeply, and the cabin footage showed that he was travelling at about 97kph. The defendant driver was unable to get the truck back onto the road pavement, and the truck continued off the side of the road and rolled before coming to rest.
The truck was severely damaged, and the load of fresh fruit was destroyed. The defendant suffered serious injuries. The plaintiffs argued that the defendant was the bailee of the fruit on board, and the destroyed fruit was worth over $36,000. The truck was repaired at a cost of $508,633.25.
The plaintiffs brought an action to recover their losses in negligence as against the defendant driver.
Judgment for the first and second plaintiff against the defendant, in the sum of $545,312.25 (including interest). The defendant paid costs on a standard basis.
The court noted that the defendant’s use of the mobile phone was illegal, pursuant to the Transport Operations (Road Use Management Road Rules Regulation 2009) (Qld). He was convicted of the offence. The judge did not accept that any factor, other than the defendant’s neglect, default or misconduct by using the mobile phone, caused or contributed to the crash.
It was found that the defendant had 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 the goods safe as a bailee.
The judge held that the loss and damage caused by the crash was reasonable, foreseeable and not too remote. The judge also held that the defendant, as bailee, had breached the duty owed to the plaintiffs by illegally using his mobile phone device, failing to pay due care and attention, losing control of the truck causing it to crash.
The defendant argued that the accident was caused by his impaired judgment due to cumulation of fatigue, the plaintiffs’ system of trip progress phone calls, and/or the absence of an integrated hands-free device in the truck. The judge pointed out that, in his evidence, the driver acknowledged having a solid history of always taking an earpiece and understanding his safety obligations regarding drive duration and the unsafe use of mobile phones. The defendant should have desisted when he failed to connect to the call, and it was his persistence in trying to use the phone that was the poor judgment.
It appeared to the judge that the defendant acted alone and unlawfully by using his mobile phone as he did. The judge did not accept the defendant’s argument that his poor judgment was brought on by accumulated fatigue. As part of the basic fatigue management plan, the defendant, as the relevant manual mandates, completed the driver’s inspection checklist at the commencement of each journey.
The driver had declared that he was fit and legal for work that day in accordance with his obligations under the Heavy Vehicle (Fatigue Management) National Regulation, and the fatigue scheme he was operating under. He declared he was fit for work and absent of any physical or mental condition that affected his ability to work. His diaries, pre-start checklist and data fatigue management system in the 14 days up to and including the date of the accident were all compliant.
The judge was not persuaded, in the absence of any established industry standard, that the first or second plaintiff was duty bound to install lane departure warning devices or technology in the truck. The plaintiffs’ evidence was that none of their trucks included such devices.
In any event, the judge was of the view that, due to the reaction time of less than two seconds as disclosed by the cabin footage, the lane departure warning would not have made any difference. The judge was not satisfied that the truck was overloaded, noting that the incident occurred before the defendant had planned to weigh in at Rollingstone. At best, the defendant’s evidence was based on past experience and his general knowledge and feel for trucks, which the judge considered was simply speculation and conjecture.
The judge accepted the plaintiffs’ evidence as to the weight limit of the truck and the accuracy of the loading manifest, and that neither trailer exceeded the regulated weight limit. In the absence of any credible evidence or, indeed, consistent with the load imbalance or distribution, the judge did not accept the truck was compromised by the load.
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