Owner driver or an owned driver?
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any drivers describe themselves as owner-drivers or self-employed but all too often they do not seem to understand all the implications of those words. Drivers may be assuming liabilities that they are unaware of; operators may be assuming liabilities for which they are not insured. Whether a driver is self-employed or an owner-driver is a very complex matter and the answer may differ according to which statute is being applied. Under the Transport Act the user of a vehicle For the purposes of an Operator's Licence is defined as "the driver if the vehicle belongs to him or is in his possession under an agreement For hire, hire purchase or loan and in any other case the person whose servant or agent the driver is." So if the driver owns the vehicle he has to have an 0-licence with all its responsibilities, whatever the commercial arrangement between him and his customer. But what about the trailer? In a recent case a large company sub-contracted the movement of an abnormal load to an owner-driver. The driver owned his tractor but was employed to pick up a trailer. All notifications for the abnormal load were handled by the contracting company but the notifications were wrong. The driver was charged with, and ple aded guilty to, offences of overloading arising out of the failure to notify correctly. The contracting company was also charged and the High Court upheld its conviction, even though it had not employed the driver. The court held that the contracting company was in control of the load. Even though the driver was self-employed, and even though he was an owner-driver, the contracting company still had a responsibility. The position can become even more complicated when drivers are hired temporarily. If you are an operator and you take on a temporary driver For a week you would expect him to be your employee. After all, you have to account to the Revenue For any tax deducted; you are responsible for any acts of that employee; and he will be covered by your insurance.
But say he tells you he is elfemployed and sends you an invoice each week for his services? In general, a contractor is not liable for the acts or defaults of his sub-contractor. If you employ a mechanic who is self-employed to work on your vehicles you would expect him to have his own insurance—if he makes a mistake you can sue him. More importantly, if he makes a mistake then any third party who is prejudiced by that mistake should be able to sue him as well.
However, IF your employee makes a mistake then you are liable (the law calls it the vicarious liability of an master for acts or defaults of his servants). This means it is vitally important to know if a driver is your employee or self-employed. Previous cases have laid down many tests for this. One easy test is to ask the question: "where does the risk lie?"
This is illustrated by a recent case which came before magistrates in North Yorkshire. A farmer with an 0-licence had employed a driver to work for him to shift a crop of beet. It was casual work. The vehicie used was owned by the farmer and the driver was paid a fixed price per load.
The driver was free to move the loads when he wanted and was paid the same price/wage however long the job took him. In the course of one of these journeys he had an accident which was due, in part, to the condition of the vehicle The farmer was prosecuted for using the vehicle in a dangerous condition but was acquitted by magistrates on the basis that the driver of the vehicle was not his employee. The magistrates concluded that the risk in the job was with the driver. If he took a long time to do the job he lost out; if he did it quickly he made more money. Conversely, however, from an 0-licence point of view the operator of the vehicle was the farmer.
A further difficulty can arise when agency drivers are employed. Terms and conditions of drivers agencies vary: some will say that the driver is always the employee of the customer (the operator). Others will say that the driver is the employee of the agency. Whatever the terms and conditions say, however, there is little doubt that for the purposes of insurance, the Road Traffic Act and the 0-licence, an agency driver will always be the employee of the operator. The position may be different for tax and national insurance.
Operators should always ensure that their insurance arrangements cover what is a very complex area of the law.
0 by Stephen Kirkbright