Bulletin December 2006 – Managers’ Responsibilities

At this time of the year driving can be a lot more hazardous (see general bulletin December 2006) and a problem not just for drivers but employers as well.  H&S legislation has been extended to cover persons driving, not just at work but also on the way home.  Of particular importance is driver fatigue (work load, Christmas parties etc)

I am taking this opportunity to add some case law which has set down parameters for liability of employers.  Some concern lorries but the principal applies equally to all other work transport.

Bowles Transport - Driver Fatigue causes Fatality - October 1999

In October 1999, Stephen Bowles (45) and his sister Julie Bowles (41), both Directors of Roy Bowles Transport Ltd were convicted of the manslaughter of Peter Morgan (48) and Barry Davies (38) who died in October 1997 in a seven vehicle pile up on the M25 after a lorry driver, working for the company, fell asleep at the wheel.

The prosecution proved that the accident was of consequence of pressure upon the driver by his employers to work long hours.

The directors, Stephen Bowles and Julie Bowles were sentenced to 15 months and 12 months imprisonment respectively, but both sentences were suspended for two years.

Andrew Cox, the driver of the lorry, received a 2½ year prison sentence for the offence of death by dangerous driving.

The case occurred before the development of health and safety for work-related road safety.

Please note that this was in 1999.  But then H&S law interpretation was extended and we had:

MJ Graves International - Driver Fatigue causes Fatality - April 2003

On April 4 2003, Martin Graves, the company director of a Kent haulage firm, became the second person to be prosecuted by Essex CPS for corporate manslaughter.

Following a detailed investigation which lasted 18 months, the prosecution was able to prove that Graves ’ negligence as a company director led to his employee - driver Victor Coates -being involved in a collision on the A12 that led to the death of another driver - even though the car had its hazard lights on.

The prosecution alleged that Coates had fallen asleep at the wheel at the time of the accident as the lorry driver had been working for about 20 hours and had little time for ‘quality sleep’.

The prosecution was able to prove that Graves had not only condoned, but encouraged, the drivers to drive in a dangerous manner. The investigation involved checking a great deal of documentary evidence and witness testimony.

Mr Coates was convicted of causing death by dangerous driving and being in breach of his drivers’ hours and was sentenced to 4 years imprisonment.

Mr Graves was convicted of breaching drivers’ hours and of the manslaughter of the car driver - and he was also sentenced to four years’ imprisonment. The investigation also led to eight other successful prosecutions of drivers working for the same company.

The case demonstrates that after a road traffic incident, both the driver and employer can face criminal prosecution.

Another, more recent case:

Driver Fatigue Causes Fatality - February 2006

Leigh Chitty, 40, of Holbeach, was jailed for three years for causing death by dangerous driving while unfit through fatigue, after he ran over and killed a Lincolnshire mother-of-three when he dozed off at the wheel.

Chitty told Lincoln Crown Court he was tired, as he had just completed three 15-hour shifts as a long-distance lorry driver. His car hit and killed 34-year-old Annette Sykes as she walked home from the pub in October 2004.

He was asleep at the wheel but was woken by the impact and braked further up the road, only to drive off again.

In addition to the prison sentence, Chitty was banned from driving for 4 years.

The police can investigate tiredness as a possible cause by looking into the driver schedules, hours, tachographs (if applicable), and the type of impact and eyewitness statements. The police can also examine marks on the road for evidence of braking.

But your staff don’t have to be AT WORK for you to be liable!!!

Chronic Fatigue - Driving outside Working Hours - The Produce Connection - April 2006

A fine of £30,000 plus £24,000 costs was imposed by a Court on The Produce Connection of Chittering, Cambridgeshire, after one its employees, Mark Fiebig, 21, of Soham, died in a car crash after working 76 hours in 4 days.

The case is thought to be the first prosecution of its kind in the UK because the defendant, The Produce Connection pleaded guilty to breaching health and safety legislation even though the deceased person had died outside working hours - he was driving home at the time.

Mark Fiebig had worked four 19 hour days - starting early in the morning and finishing late at night. He died when his car drifted into the path of an oncoming lorry on the A10 near Ely as he drove home from work in October 2002.

Prosecutor Pascal Bates said Mr Fiebig had worked 11 days without a day off prior to his fatal crash. During that time he had worked on average 17 hours per day and was getting 3 to 4 hours’ sleep per night. Bates said other staff were working similarly long hours.

He added ‘Workers were paid by the hour. For payroll purposes, a daily note was kept of each worker’s working hours. The farm manager had to be aware, and so did other management.’

Judge Gareth Hawksworth, at Cambridge Crown Court, said the company had failed to properly monitor the hours its employees worked.

The court heard that Fiebig was thought to be suffering from chronic fatigue and had fallen asleep at the wheel. Prosecutor Pascal Bates said Fiebig had worked 11 days without a day off prior to his fatal crash.

The company admitted failing to ensure the health of workers and the public. Along with the £30,000, it was also ordered to pay £24,000 costs.

HSE I DfT guidance ‘Driving at work’ (INDG 382) makes it clear that employers must take fatigue into account when considering the fitness of workers to drive while at work

Another important point is that you must maintain your vehicles:

Falsifying Inspection Sheets - September 2002

The owner of a car transporter firm, Paul Duckmanton, admitted falsifying inspection sheets so that his company records would look ‘in order’ after one of his drivers, Michael Roberts, mounted a kerb in Southampton and ran over 78-year old Joyce McVey when his Scania’s brakes failed.

Roberts had been involved in another accident only 2 days earlier where he collided with a car. He told his boss that the brakes were defective, but a cursory inspection appeared to show no defects. Duckmanton later returned to the police station and told officers that one of his fitters, Terence Gleadall, had asked him after the fatality whether an inspection sheet should be filled in ‘because the Ministry would be coming.’

Driver of the transporter Michael Roberts, 41, was jailed for 1 year after admitting manslaughter.

CarTrans boss Paul Duckmanton, 47, was jailed for 8 months for tampering with the lorry’s service records.

Terence Gleadall, the fitter, served 4 months for tampering with the service records of the poorly-maintained CarTrans lorry. He admitted conspiring to pervert the course of justice.

This again emphasis the need for thoroughness when maintaining or servicing a vehicle. The fact that the company felt it necessary to ‘create’ entries after the incident is evidence that the original audit trail was deficient.

Not all bad news for employers though:

Mobile Phone Policy in Place

An employee using a non hands-free phone lost control of his vehicle and collided with another vehicle resulting in the death of the other driver.

The employee was sentenced to 3 years in prison plus a 4-year driving ban.

The employers were cleared of all blame when it was shown that all their procedures were in line with the legislation and that specific written instructions had been issued to all employees regarding the use of mobile phones whilst driving.

By having a mobile phone policy and being able to demonstrate that the company and its drivers comply with that policy will provide a first line of defence against prosecution

You should all have a mobile phone policy in place – if not please mail me ASAP.  It is important however to ensure your staff have been told about it!!!  Do not get prosecuted for want of a memo.

In Conclusion:

Keep your company vehicles well maintained (and document this)

Inform your employees of the mobile phone policy

Ensure your employees do not drive when tired – if they have had a rough night, send them home!

Mike Sweeney

Chartered Safety & Health Practitioner