Truck driver personally liable for damage caused after using phone whilst driving Truck driver personally liable for damage caused after using phone whilst driving

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Truck driver personally liable for damage caused after using phone whilst driving

1 November 2021 | Public & Product Liability

This decision considers whether a bailee (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.

In Issue

  • The main issue in this case involved the duty of care of a bailee for damage caused to goods in the bailee’s possession.

The background

The first and second plaintiffs, who were respectively goods carriers and truck owners, sued the defendant driver for $581,991 because he lost control and crashed a fruit laden truck whilst 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 who 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 18 September 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 which was travelling at a speed of about 97 km/hr, 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 in damages to the plaintiffs.

Implications for you

This case is unusual because whilst 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.


Blenner’s Transport & Anor v Dowling [2021] QDC 249

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Madeleine O’Connor

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