Wilful misconduct under the CMR revisited by the High Court

Knapfield v Cars Holdings Ltd [13.06.22]

In the recent case of Knapfield v Cars Holdings Ltd [13.06.22], the English High Court was asked to consider the application of wilful misconduct under the Convention on the Contract for the International Carriage of Goods by Road 1956 (the CMR), and provided helpful clarification on the level of conduct required to break the CMR’s limits of liability.


The case involved the transport of two valuable cars from the UK to France, and back again. During a drop off of other vehicles on the return journey it was discovered that one of the cars had slipped backwards into the other, causing damage.

Liability was admitted by the defendant, however, the defendant argued that such liability was limited to 8.33 SDR per kilogram in accordance with Article 23 of the CMR. The claimant argued that the defendant was guilty of wilful misconduct under Article 29 of the CMR and, therefore, liability could not be limited.

Wilful misconduct

The position adopted by the English courts in respect of wilful misconduct is well versed. It is accepted that, under English law, to establish wilful misconduct under Article 29 of the CMR, the claimant must prove that there was conduct so far outside the course of reasonable behaviour as to be misconduct.

Furthermore, it must be shown by the claimant that the carrier embarked upon this misconduct either in the knowledge that it exposed the goods to a risk of loss or damage or that the carrier was reckless as to whether the goods would be exposed to such a risk (Jones v Bencher [1996]).

In the case of Thomas Cook Group Limited v Air Malta Co Limited [1997], Mr Justice Cresswell defined the test for wilful misconduct as:

“A person wilfully misconducts himself if he knows and appreciates that it is misconduct on his part in the circumstances to do or fail to do something and yet (a) intentionally does or fails or omits to do it; or (b) persists in the act, failure or omission regardless of the consequences; or (c) with reckless carelessness, not caring what the results of his carelessness may be. A person acts with reckless carelessness if, aware of the risk that goods in his care may be lost or damages, he deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so”.

The burden of proof to establish wilful misconduct lies with the party alleging it.

High Court decision

In this case, the court concluded that the cause of the damage to the car was the inadequate securing of the front wheel straps which caused the vehicle to slide backwards.

However, whilst that failure of securing the vehicle was perhaps negligent, it was not reckless or deliberate. Further, a failure to follow instructions was also not sufficient to establish wilful misconduct under the CMR – again, it was deemed to be negligent, but not reckless or deliberate.

The mental element of appreciating the risk and being reckless or deliberate was not established.

Accordingly, the defendant was permitted to rely on the limits of liability within the CMR.


This case reiterates the high threshold a claimant must overcome to successfully establish a claim for wilful misconduct and, in the process, be entitled to claim damages in excess of the limits of liability provided for in the CMR.

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