Need for action on tired driving

The legal advice comes in the wake of a company facing a civil action and a potential £1 million compensation payout after an over-tired worker was paralysed when he was flung from the van he was driving.

The Court of Appeal heard in the spring that Bradford-based Atkinsons Kitchens and Bedrooms encouraged a culture of long hours.

When the van crashed on the M1 in 2004 its driver Michael Eyres, who was 20 at the time, had begun work at 3.30 am and had fitted two kitchens 122 miles apart. The crash happened as he drove home at 10.15 pm. Sitting next to Mr Eyres, fast asleep in the van on the night of the crash, was Craig Atkinson, the 28-year-old managing director of the firm.

Ruled

The Court of Appeal ruled Mr Eyres, who broke his back in the crash and will not walk again, could sue his employers for damages and awarded him an interim payment of £400,000. His final award, which will be assessed at a later date, will be reduced by 33% because of his own contributory negligence in not wearing a seatbelt and knowing he was at risk of falling asleep after working 19 hours.

Lord Justice Ward said: "Mr Atkinson's saying: 'Eating's cheating' and: 'You can sleep when you’re dead', summed up the company's philosophy."

The judge said the company was 'young and successful' and added: "Its success was no doubt based upon hard work and the clear impression... was that long hours, resulting in good money, were accepted by all to be normal."

The Court of Appeal overturned a High Court ruling that Mr Eyres was to blame for the accident because he may have been using a mobile telephone. Lord Justice Ward said that on the balance of probabilities the cause of the accident was not using a mobile phone, but falling asleep.

He added that Mr Eyres was 'in that predicament because his employers had put him there', a view that expert fleet safety lawyer David Faithful says should serve as a warning to every business in the country.

While the number of hours that HGV drivers can work is tightly controlled there are no similar statutory rules for millions of car and van drivers that travel up and down the country daily on company business.

Mr Faithful, a consultant to solicitors Lyons Davidson and an advisor to RoadSafe, said: "The Court of Appeal has ruled that employers do have a duty to make sure that their employees are fit to work.

"Each case turns on its own facts. An employers' culture is not always about laid down rules. It is about having a structure in place and engendering a spirit of caring that shows to staff that it is OK for them to make their own decision on whether to take a break or make an overnight stop.

"Companies which turn a blind eye to driver fatigue are at risk. Policies governing how long staff are allowed to work, which includes time spent behind the wheel, and how many miles they are allowed to drive should be put in place.

"Companies must do their utmost not to be seen as encouraging a long hours culture."

No other vehicle was involved in the crash in which Mr Eyres was injured and no criminal prosecution resulted. Instead, he launched a civil action against his employer - a move which Mr Faithful has frequently warned employers to safeguard against by putting health and safety management structures in place and by taking a caring attitude to all employers through bespoke job-specific training if needed.

The case means that all employers should take work-related road safety seriously, according to the Royal Society for the Prevention of Accidents

Tragic

Roger Bibbings, RoSPA's occupational safety adviser, said: "This case is a tragic reminder to employers of the need to manage occupational road risk. Between 800 and 1,000 deaths a year on Britain's roads have been linked to people being at work at the time. More employees are killed while at work on the road than in all other workplace accidents put together.

"Employers have a duty to ensure the safety of their employees, who drive as part of their job, and those on the roads around them who may be affected by their driving. They need to have people, policies and procedures in place to manage risk on the road in the same way that they manage other aspects of health and safety.

"Fatigue is a major cause of road crashes and firms should ensure workers are not expected to drive too far or spend too long on the road. Companies need to be sure that their employees are in a fit condition to drive and have had adequate quality sleep before getting behind the wheel."

Act rewrites the rules on deaths

A decade of effort to rewrite UK corporate manslaughter laws and hold company executives accountable for negligent deaths in the course of work saw the legislation receive royal assent at the end of July following a lengthy journey through Parliament.

Commenting on the new Act, Justice Minister Maria Eagle called the new law 'ground-breaking' and added: "This is about ensuring justice for victims of corporate failures. For too long it has been virtually impossible to prosecute large companies for management failures leading to deaths.

"The Act changes this, for the first time companies and organisations can be found guilty of corporate manslaughter on the basis of gross corporate failures in health and safety. The Corporate Manslaughter and Corporate Homicide Act will make it easier to prosecute companies who fail to protect people.

"We are sending out a very powerful deterrent message to those organisations which do not take their health and safety responsibilities seriously."

High-profile disasters such as the Potters Bar and Paddington train crashes and the Zeebrugge ferry disaster raised fears that company executives were not being held properly accountable for the deaths of customers and employees.

Now the Act means that companies will be prosecuted if, for example, it can be proved that a fatal road crash was caused by a gross negligent duty of care failure by senior management. This could apply, for example, in relation to the use or maintenance of vehicles or unrealistic driver schedules causing fatigue with the penalty an unlimited fine.

Lawyer David Faithful, a consultant to solicitors Lyons Davidson and an advisor to RoadSafe, said: "Fleet decision-makers now know the legislation is coming into force so it is a final wake-up call for companies that have done nothing to manage the atworking driving risks posed by employees.

"If a driver is involved in a fatality then the police will visit the company. They will go through offices and records with a fine toothcomb. Unless companies can demonstrate on day one of the investigation that they have an efficient system in place in terms of health and safety and occupational road risk management then they will have a problem.

"Condition of the vehicle, condition of the driver and the purpose of the journey will all be investigated. Even if there is no eventual prosecution under the new Act, the inquiries will still cause difficulties for the business."

In any event, prosecutors will still be able to resort to both the 1974 Health and Safety at Work Act and the Management of Health and Safety at Work Regulations 1999.

Safety finger points at hands-free sets

The new research, on behalf of the Department for Health, comes as industry surveys regularly highlight that despite the February introduction of tougher penalties for the use of hand-held phones while driving, thousands of company drivers continue to break the law.

Suffers

The TRL report, 'Conversations in cars: the Relative Hazards of Mobile Phones', concludes: -Driving performance clearly suffers when the driver is performing a simultaneous task. The results for reaction time suggest that talking on a hands-free phone is more distracting than talking to a passenger or other in-vehicle tasks."

It remain legal to use a hands-free phone while driving, although the Highway Code states that all mobile phones are distracting and their use should be avoided.

The report adds: "Talking on a handsfree phone while driving can result in an unsatisfactory information exchange and poor decision making. The results of this study clearly indicate that the conversation itself is impaired when driving."

Given the driving risks of talking on a hands-free phone and the fact that the quality of the information exchange is compromised, the report says: "It is not worth the increased potential risk of using a hands-free carphone while driving. This research may be particularly relevant to companies where employees use phones for work, and may wish to develop policies regarding phone use." The penalty for using a hand-held mobile phone while driving has been increased to a £60 fixed penalty fine and three points on a driving licence, but a survey of 731 business drivers at forecourts across the country found that 70% of business drivers still admitted to using their mobile phone behind the wheel with a frightening 7% still refusing to even use a hands-free option.

Additionally, the 2006 Road Safety Act makes it clear that drivers can also be fined even if they use a hands-free kit, if the vehicle is deemed to be 'out of control'. Mike Waters, head of market analysis for fleet and fuel management company Arval, which conducted the survey, said: "The results of the survey should act as a red flag for fleets. Clearly this is still a problem for fleet managers as drivers continue to ignore the safety messages linked to mobile phones while driving and to rack up penalty points and fines for hand held mobile phone use.

Establish

"It is important to establish why drivers are continuing to use their phones behind the wheel, when they may be breaking the law and risk hefty penalties. Are drivers simply ignoring the law or are companies continuing to put pressure on staff to answer the phone while behind the wheel?"

"Companies must realise that the driver is not solely accountable for using a mobile phone. If a business call to a driver is found to result in an accident, the company could be held legally responsible."

Europe-wide register planned by 2010

And companies losing their operating licence in one member state would lose it in every other EU country as well.

The announcement from EU Inland Transport Director Enrico Pasquarelli, comes amid growing concern from the Freight Transport Association at the safety record of foreign lorries operating on UK roads.

The FTA is particularly concerned over the roadworthiness of vehicles and the breaching of overloading and drivers' hours regulations.

FTA chief executive Richard Turner, who has campaigned for a sharing of data across the EU, welcomed the announcement which, he said, reflected his vision for 'free movement of enforcement' in Europe.

Mr Turner said: "We've got enough laws - we don-t need any more. What we need to do now is to ensure that they are evenly enforced. We need to ensure that high standards are adopted by all, not just the best operators.

"At present a significant minority leave their standards of behaviour behind when they are away from their home country, secure in the knowledge that the authorities cannot touch them.

"A Europe-wide database, and targeting of known offenders, should end that."

With one-in-seven of the heaviest vehicles on UK roads from overseas, the Vehicle and Operator Services Agency says that 50% of them enter the UK with a roadworthiness fault, 25% are driven by a tired driver and a similar number are overloaded.

An FTA spokesman added: "The UK has created a regime of regulations and enforcement on lorry operations which has resulted in a safe domestic transport industry.

"It is crazy that increasing numbers of foreign vehicles do not comply to UK standards and are so easily able to avoid the penalties of failing to do so."

Call to ban ALL smoking on the roads

On July 1, England joined Scotland, Wales and Northern Ireland with laws banning smoking in locations that include vehicles. However, the exact detail of the anti-smoking laws vary from country-to-country with regard to vehicles - for example smoking in company cars is banned in England, Wales and Northern Ireland but not Scotland.

The difference in national laws throws up numerous issues for companies. For example, an employee at the wheel of a company car in Scotland could legally smoke. However, if the driver then crosses the border into England the vehicle must be smoke free so an offence has been committed.

Published

The new edition of the Highway Code, which will be published in the autumn, includes 'smoking' in the list of potential distractions to be avoided when driving. Road traffic legislation already places responsibility on all drivers to have proper control of their vehicles. Any motorist who fails to do so, for whatever reason, such as smoking, or eating and drinking, is liable to prosecution.

Now, the Local Authority Road Safety Officers' Association (LARSOA) is campaigning for a complete ban on smoking while driving. The organisation believes that the new laws may mean many more smokers lighting up in their cars on their way to and from non-smoking destinations.

Government figures show that, in 2005, a total of 50 fatal crashes involved a distraction inside the vehicle as a contributory factor. In-car distractions were recorded in a further 337 crashes in which someone was seriously injured and 2,538 where there was a lesser injury.

The Department for Transport has told LARSOA that it has no plans to ban smoking at the wheel, but publicity around the call has won support from polls conducted on the internet by What Car? magazine and eBay Motors. A total of 70% of British people think smoking at the wheel is so dangerous it should be banned and is equally distracting as using a hand-held mobile phone while driving. A third of those surveyed by eBay admitted having driven carelessly when lighting and stubbing out cigarettes, flicking ash and trying to deal with lit butts blown back into the car after being thrown out the window, disregarding the safety of other road users.

David Frost, of LARSOA, said: "The surveys for eBay Motors and What Car? are backed up by the RAC Report on Motoring 2007, based on a large scale survey and focus group discussions, which found 57% of respondents thought it acceptable as a safety initiative to stop people eating, drinking or smoking at the wheel."

Research

Meanwhile, Australian research suggests smokers are more likely to crash than nonsmokers and that people who were smoking while driving were more likely to crash than those who were not.

Will Murray, research director of Interactive Driving Systems, said: "Banning smoking from all company owned or funded vehicles will improve road safety, ensure consistency of policy, keep vehicles in a better condition and help obtain higher resale values."

Mr Frost added: "This issue has raised the debate on the responsibilities we have as drivers to ourselves, our passengers and other road users. Distraction in the vehicle can be deadly and smoking is quite literally playing with fire when you should be concentrating on driving. Throwing the butt out of the window shows a complete disregard for other road users, especially pedestrians, cyclists and motorcyclists.

"While smoking, drivers have to take their eyes off the road and hands off the wheel in a similar way to using a mobile phone which the Government has already made a specific offence. Lapses in concentration when driving can cost lives. We urge people to be responsible and not smoke and drive. Think about the human cost if you were to cause a collision."

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