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Liable to prosecute?
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When you go into business and begin employing people, whether as direct employees, self-employed subcontractors or agency personnel, your liabilities can increase to the extent that you can become legally responsible for their actions. So what is the haulier's criminal liability for others, and how could it affect you on a day-to-day basis?
can become the "user" and can be convicted of a criminal offence if:
+ The driver is his employee and is driving as part of his job; + He is using it in connection with the employer's business.
It doesn't matter if the employer knew of any offence he is still liable to criminal prosecution, even if he gave the employee instructions not to use the vehicle in such a way as to cause the offence. The bottom line is that unless Parliament has provided the employer with a defence, the operator is guilty.
The actions of the driver become the responsibility of the operator if, in respect of certain criminal actions by the driver, the operator "causes", "permits" or "aids and abets" the committing of the offence; for example, by requesting, allowing or encouraging drivers' hours breaches.
The essential ingredient for a criminal prosecution of this nature is knowledge. Knowledge need be no more than turning a blind eye to what an employee is doing.
"Permitting" is either expressed permission or failure to prevent something continuing to happen. An example where a prosecution for permitting might occur is if there was a failure to carry out an adequate check of tachograph charts which would have revealed a particular driver repeatedly offending, along with failure by the operator to prevent the recurrence of such offences.
A fairly high level of proof is needed to show that the operator was reckless; mere negligence is not enough to be convicted of this offence.
If, for example, a tachograph system is in place and the clerk who is fully trained on tachograph analysis) fails in his duty to properly inspect charts and report offences to management, this may amount to negligence but the operator may not be guilty of permitting those offences the clerk had failed to spot. However, every case will by judged on its merits.
Once again, "causing" suggests knowledge by the operator, but is a more serious offence than "permitting" in that causing is effectively a positive instruction to a driver, or a deliberate decision to ignore what a driver is doing. An example of this would be if a driver was specifically told to take a vehicle out when the operator knew the brakes were defective or was ignorant of the defective condition of the brakes because he had neglected to arrange the necessary preventive inspections.
Normally, the legislation uses the words "use', "cause" or 'permit", meaning that knowledge is a prerequisite for successful prosecution. In some cases, however, if the word "use" is not in the wording of the offence an operator is charged with, and "cause" or "permit" appear without it, the offence may well become an absolute offence, which means operator knowledge does not have to be proved.
This is the case with vehicle insurance offences, for example. If the driver does not have a licence to drive a particular class of vehicle, any insurance cover on that vehicle would exclude him and he would be guilty of driving a vehicle with no insurance (CM 6-12 Dec). You, as the employer, would also be liable for his actions and guilty of the offence—even if he deliberately misled you into believing he had an appropriate licence.
If a driver deliberately breaks the law on overloading, drivers' hours, tachograph regulations or insecure loads, the operator's control system will only be useful in terms of mitigation. If an operator can establish that he has not been negligent he may be able to persuade the court not to impose any penalty against loin.
In drivers' hours cases a failure to examine the charts or take action as a result of any chart examination may be sufficient to make the operator liable for the actions of others, whether in terms of causing, permitting, or aiding and abetting. Simply analysing the charts, finding the infringements, getting the driver to sign the infringement sheets and putting the completed sheets in a drawer without taking further action is not enough. This would probably be evidence of "permitting" if repeated offences came to light.
When it comes to tachograph and drivers' hours offences, tacho offences involving use of the equipment are likely to result in prosecution of the operator for "using" a vehicle, while for drivers' hours offences the operator can only be prosecuted for causing or permitting the offences or aiding and abetting where the prosecution can prove a criminal element of knowledge and recklessness.
So what can the operator do to avoid prosecutions of this kind? First, the operator must set up effective systems to comply with his 0-licensing undertakings—and he must ensure that those systems remain effective. This process should involve:
+ Training;
+ Issuing instruction manuals or handbooks; Ensuring there are procedures for compliance; + Carrying out regular checks to ensure the system is effective;
• Taking action to prevent repetition of any offences by employees;
+ Enforcing an effective written disciplinary procedure.
There is no rule governing HIE frequency of periodic checks. What is important is that the correct systems must be introduced and they must be effective.
CUSTOMERS
What if it is the customer who is at faulC For example, what if the customei declares the wrong weight on thc consignment note and the cargo is 15 tonnes and not 14 tonnes?
In this case the operator can bc prosecuted, as can the driver, for "using' the vehicle while overloaded, whether tfm offence concerns axle, gross, or train
weight. Getting a letter from the customer admitting the fault could be difficult, particularly if the customer gets a commercial advantage from misdeclaring the weight.
The customer's action may be deliberate or accidental, but this doesn't really matter to the operator. However, it is obviously beneficial when dealing with mitigation of any penalty if a third party is prepared to admit their error to the court, either in writing or verbally.
An operator hoping for a substantially reduced penalty (possibly no penalty), an absolute discharge or a conditional discharge will still have to prove that he has systems in place and there has been no failure of those systems.
WHAT a...
the customer's goods are badly packaged?
imagine a scenario where the metal banding on some steel rods is insufficient to prevent the rods sliding out into the windscreen of a following car. Or say the banding breaks and the bundle is shed across the carriageway, despite the fact that the driver has used the correct number of loading straps secured in the accepted way.
The law says that the operator is using a vehicle with an insecure load and a prosecution will follow because all the prosecution has to prove is that it was your driver, driving on your business, acting in the course of his employment, and that the load fell from your vehicle while it was being used on the road.
If that is proved then the operator is guilty of using. As with the misdeclaration of weight by a third party, to defend yourself you will have to establish that the fault lies with the third party, and that you had systems in place to prevent such occurrences.
If these conditions are met, the court can take those matters into account when considering what the penalty should be, or if a penalty should be imposed at all. But there will still be a conviction.
If the operator knows the customer's method of securing bundles or packages is inadequate, and the prosecution is able to prove this, then the more serious charges of causing or permitting an overload or insecure load could be brought, with the risk of stiffer penalties.
If someone was killed as a result of a vehicle being overloaded or carrying an insecure load, even more serious charges could be brought, including causing death by dangerous driving or manslaughter, which could result in imprisonment. Operators have to ensure that their vehicles are kept in a fit and serviceable condition and failure to do so can result in a criminal prosecution if they are used on the road in a condition which renders them dangerous or in breach of the Construction and Use Regulations, for problems like defective brakes or steering.
In such cases, it doesn't matter that the operator might have contracted his maintenance out to a third-party garage, and that the garage's fitters have not done their work correctly (except that, once again, an admission of negligence will help in mitigating any penalty). So an operator is not only responsible for the actions of his own workforce, but also those of his maintenance contractors.
As if the risk of third-party actions under road traffic legislation was not bad enough, the operator can also be liable under health and safety legislation, which imposes general duties on all employers.
Failing to comply with any of these general duties does not automatically give rise to a civil liability but it may well lead to a criminal liability—and those general duties are wide ranging. The general duty has been described as a godsend to prosecutors because the employer has a duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all his employees.
Employers and self-employed people such as owner-drivers must ensure that their activity causes no risk to the health and safety of anyone. including nonemployees. Breach of that duty will result in criminal liability if anyone is injured, for example due to the state of a vehicle.
Finally there is a general duty on anybody who occupies premises in connection with their trade or business. The operator must ensure that all access and all substances on the premises are safe. This extends to operating centres, warehouses, quarries and other premises.
The only defence is that it was not reasonably practicable to avoid an accident. An increasing number of prosecutions are being brought by the enforcement agencies under this general provision following road traffic accidents as well as accidents on site. The penalties for breach of health and safety legislation are substantial.
There are also requirements outside the general duty, including:
4. Providing safe plant and equipment; + Ensuring safety in relation to the handling, storage and transport of goods; + Providing information, instruction and
training; • Maintaining the workplace (which includes the vehicle) in a safe condition without risk of injury to health.
The trend seems to be for these to be regarded as strict liability offences and although there is a defence available, it is becoming increasingly difficult to establish.
The use of subcontractors will not necessarily protect the operator from criminal liability. Subcontractors may be seen as part of the operator's "undertaking", and therefore the operator's responsibility. The operator must treat subcontractors in the same way as he treats his own employees by providing them with the same information and the same training, using the same systems and expertise.
Say an operator subcontracts the collection of goods from his customer and, while at the customer's premises, the driver's sack truck falls from the vehicle hurting one of the customer's employees. You, as the operator, are responsible for the actions of the subcontractor's driver, even if the driver was an independent subcontractor or owner-driver. Under health and safety
D legislation an independent subcontracted haulier is likely to be treated as part of your undertaking.
EMPLOYEES
Employees also have a legal duty to take care of themselves and others who might be affected by their actions or omissions whilst at work. They must co-operate with their employers over any duty or requirement concerning health and safety, and must not intentionally or recklessly do something which could affect the health and safety of themselves or others, or breach statutory duties. So employees can be charged if their actions result in death or injury to themselves or others.
The operator must ensure that effective systems are in place, including training and disciplinary procedures for those who do not follow accepted working practices. This may afford him some protection against prosecution for any acts or omissions of his employees.
To comply with the health and safety requirements, safe systems of work are required—but they can only help if they are closely monitored and policed. It is therefore essential that employees are properly supervised and disciplined if they are found not to be following safety procedures, not using safety equipment or misusing that equipment.
The basic principle is that no-one will accept you are fulfilling your health and safety requirements unless procedures are documented and you keep records of training and retraining, warnings to drivers, instruction memos and disciplinary action.
Any operator trying to defend himself or mitigate a penalty has to prove that he complied with the health and safety requirements—and only documentary evidence will satisfy most courts.
A good guide to the application of the health and safety requirements in transport operations is the HSE guidance note Workplace Transport Safety Guidance for Employers.
Operators should take particular care over areas which can cause significant health and safety risks, namely: ▪ Reversing and manoeuvring; • Parking; • Access to vehicles;
4 The sites used and visited by the
operator;
.0 Loading and unloading; + Tipping; 4 Sheeting and unsheeting.
OPERATOR'S LICENCE
The real sting in the tail for the operator following the actions of third parties can be the loss of his 0-licence. If a maintenance subcontractor lets unserviceable vehicles out on the road the Traffic Commissioner can take action against the operator's licence because it is the operator's responsibility to make sure that his vehicles are fit and serviceable while being used under his licence.
He gave an undertaking to that effect so it is not a complete defence to blame the contractor. Again, the operator must have systems to ensure that his maintenance is effective—and that includes checks on the maintenance contractor.
Road traffic offences lead to criminal convictions and must be reported to the TC, even if they were caused by employees or third parties, The TC will then decide whether to impose any kind of sanction for lost repute.
Health and safety prosecutions, which can extend to road transport issues involving road traffic accidents, carry substantial penalties. If an operator has two convictions which are classed as serious under the Goods Vehicle (Licensing of Operators) Act—defined as a financial penalty over i3,000 per offence—the individual would lose his repute, leaving a TC with no option but to revoke the licence, however extensive the mitigation might be.
Third parties can have an effect on your business, so any third parties involved in your business must be treated as if they were your employees for the purpose of road traffic and health and safety at work legislation.
The examples given above are by no means a definitive list of the actions which can be taken against you as an operator as a result of a third parties' actions. But the message is clear: do not assume that because it is someone else's fault that you are immune from criminal prosecution or civil claims for damages, or that your 0-licence is safe.
Review your systems and operational methods; consider if they are effective; and ensure that they continue to remain effective at regular intervals.
It is important to make sure that you as operator keep abreast of current legislation affecting your business. Are you satisfied that, having achieved your CPC through grandfather rights, you have the appropriate knowledge of current legislation governing drivers' hours, tachographs, licensing, health and safety, employment, load security, vehicle taxation, and weights and dimensions?
If you're in the slightest doubt, do something about it.