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#1 Posted : 28 September 2001 14:01:00(UTC)
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Posted By Nick House I hear on the grapevine that there is about to be new legislation introduced passing the responsibility for the roadworthiness of copany cars from the driver to the company. Could anyone shed any light on this, as although at present I ensure that all vehicles in our fleet are regularly checked, to a cetain extent, I have to rely on the driver's common sense.
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#2 Posted : 28 September 2001 23:49:00(UTC)
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Posted By George Wedgwood Nick, the easiest thing to remember is that the company car is a piece of 'work equipment' and is therfore the Employer's responsibility when it is being used for work applications by the employee. The employer can devolve some of the responsibilities to the employee for regular checks and servicing etc. but they must demonstrate that the risks are being managed. This is the difficult bit and I think most employers do not actually monitor employee performance in this area closely enough. A failure to have a vehicle serviced at the appropriate time may render it unsafe and place the employee at risk - so it that the employee's fault or the employer? Clearly a deliberate breach of company rules will be a employee failure and a possible disciplinary offence but in law I believe the employer remains responsible for a safe system. That must mean periodic checks and records, demonstrating diligence. It will be interesting to see the Draft Guidance on Occupational Road Risk soon to be published, which should address this topic, so look out for it on the DETR web site. I can share a draft company process if you email me on george.wedgwood@pgen.com
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#3 Posted : 01 October 2001 12:07:00(UTC)
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Posted By Geoff Just to broaden the discussion. If the vehicle is a piece of work equipment then should there not be instruction ,training and information on the use of the work equipment. Is it necessary to carry out a risk assessment on the types of vehicle on the market? Purchase of company vehicles is generally done on the basis of financial considerations and not safety. If a company buys a fleet of vehicles which have a poorer crash rating than another , does this leave the company open to having failed to take all reasonably practicable steps to ensure the safety of its employees? What about competency to drive safely? What is the situation with regard to where employees provide a car and are paid a mileage allowance. They are at work while driving their own car. Is the vehicle then classed as work equipment? What about the maintenance of the vehicle? How far down the line does the employer have to go to ensure that drivers have a current driving licence and insurance, at the time of driving the vehicle? Some companies check driving licences and insurance documentation on an annual basis. Is this sufficient?
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#4 Posted : 01 October 2001 12:18:00(UTC)
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Posted By Nick House When looking to renew our fleet last year, I did spend around 3 months checking out several manufacturers, and as well as test driving the vehicles over varying distances and road types, also asked the dealerships to provide me with all relevant NCAP ratings for the vehicles that we were potentially interested in. I am glad to say that our board bought into providing the vehicles with the highest NCAP ratings in their class at the time. Also, I have now implementeda policy whereby drivers are asked to show me their driving licence on a quarterly basis, and if they cannot do so without good reason, then they are aware that the right to drive a company vehicle may be suspended until proof of holding a current licence can be proved. As for training, most insurance companies now offer defensive driving courses to fleets, which in my opinion are a worthwhile exercise, as in our case, each driver was taken out by an instriuctor and assessed before having a full training course which involved both in car and in classroom training.
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#5 Posted : 01 October 2001 15:59:00(UTC)
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Posted By John Webster I still don't think we have an answer to Nick's original question. Regarding the car as a piece of work equipment, the employer would have certain duties towards users of company cars under the Health & Safety at Work Act. In the event of an accident attributable to poor maintenance etc, would the HSE prosecute the owner and supplier of the vehicle - the employer? Might the injured driver be entitled to sue his employer for breach of duty of care by providing him/her with defective equipment? However, under the Road Traffic Acts it is the driver who is responsible for the condition of the car and would be liable for prosecution for driving a defective vehicle and for the consequences of any accident resulting from the defects. The driver could be sued for damages by anybody else involved in the incident, including by work colleagues travelling in the same car. This does seem to be a nonsensical position, particularly for those who have to use the next available vehicle, or share its use with those on other shifts and have therefore no control over maintenance or the way the vehicle is driven/abused. The same could be said for those who hire vehicles. Few of us are knowledgable enough to properly assess the safety of a vehicle in a few minutes in the pouring rain in the middle of a car-park. Changes in the way the legislation works to place the onus more firmly on the provider of the vehicle would surely be welcome.
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#6 Posted : 01 October 2001 16:39:00(UTC)
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Posted By George Wedgwood Geoff, you are correct in your assumptions and in my Company, we specify a minimum set of criteria for the lease or hire car for employee use on Company business. We also advise managers to ensure their staff are competent in defensive driving and have a valid licence. It's not everything but it is a start and not all managers take the guidance on board. However, we have set out our Vision to be a world leader in OSH Performance and such issues help drive towards that. Through example, managers eventually all learn what helps them achieve excellence! We have now issued a Gudiance document on all of this to managers, based on the work of the HSE/ DETR MORR discussion group George
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#7 Posted : 03 October 2001 09:32:00(UTC)
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Posted By Richard Leaving aside the Road Traffic Act, is not the duty to provide safe equipment under PUWERS absolute? I seem to remember a recent case where an employer (Royal Mail?) was convicted when the brakes failed on a company supplied bicycle, even though they were able to prove regular maintenance and due diligence etc. Richard
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#8 Posted : 03 October 2001 11:58:00(UTC)
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Posted By George Wedgwood Richard, PUWER Regs 4 and 5 deal with the matter are you are discussing and the employer's responsibility to provide 'safe'(in your words) work equipment is actually to provide "suitable" WE and have regard to the risks etc. of the WE. That means he must carry out a risk assessment and hence the test will be in the balance of reasonableness and all that is laid in the Management Regs. Regulation 5 talks about Maintenance and this would cover the aspect of the failed brakes, due perhaps to poor maintenance standards. The employer here has a duty to maintain the WE in an 'efficient' state etc. and in 'good' repair. Again this begs a judgement and would again be subject to what or how much had been done to ensure the duty in the first place. Reg 22 covers Maintenance Operations and here it is stated that the WE must be constructed or adapted so far as is reasonably practicable, so as to be safe during maintenance or shut down for example. So really the responsibilities are all subject to the test of reasonableness in terms of 'how much' is done but the duty to maintain is absolute. Therefore employers must be able to demonstrate that they are maintaining WE in a 'suitable' manner. Of course most of the details are included in the ACoP to PUWER and that really cannot be departed from. Good discussion! Regards, George
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#9 Posted : 03 October 2001 16:14:00(UTC)
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Posted By Richard George I agree with everything you say, but in the case to which I referred, which was fairly recent, and I'm sure involved a postman/woman, the judge was quite happy that the "equipment" had been properly maintained but he declared the duty to be absolute, and so found the company guilty. So far as I am aware, this has not been overturned on appeal Richard
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#10 Posted : 03 October 2001 16:34:00(UTC)
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Posted By George Wedgwood I have do doubt that you are right and as I said, the duty to 'maintain' is absolute. What the company did probably not do was to maintain at all and they probably did not have any validation that maintenance was actually been done in any shape or form. If they had been doing something then the duty would have been satisfied but the degree would not have. On that basis the Judge would have had to assess the degree of compliance with the reasonableness of the type and degree of maintenance carried out. I imagine that if the employer could not supply any service records for the vehicle and the brakes failed then they failed to ensure that the (employee) ensured that the appropriate servicing (a normal part of any company car contract - employees watch this one!) was carried out. If it were established that the employee 'forgot' and the employer failed to capture this fact or just failed to monitor that the employee was actually satisfying his lease contact terms, then again the employer would be found wanting in my opinion. Most employers with lease schemes do not check in my experience. Keep it coming!
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#11 Posted : 03 October 2001 17:46:00(UTC)
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Posted By Jay Joshi My understanding is that at this point in time, on "public roads", The Road Traffic Acts and its secondary Regulations take precedence over HASAWA and its secondary regulations as far as "company cars" are concerned. In this context refer to paragraph 65 in the PUWWER 98 ACop. The situation may change on the basis of the responses to the Discussion Document on "Preventing at-work road traffic incidents". Obviously there are important civil and loss control liability issues to be addressed. The ROSPA guidance "Managing Occupational Raod Risk" is excellent and credit should be given to ROSPA for its enduring campaign on this.
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#12 Posted : 04 October 2001 10:33:00(UTC)
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Posted By Robert K Lewis When the duty to maintain is absolute then any failure is de facto a breach of that duty. There is no question as to whether the system is in place, thorough and meticulously applied. The question is whether maintenance could have prevented the failure. The courts have been scrupulous in applying this absolute duty and I am not sure the incident recounted is clear in my mind because the judges reported words do not seem to tie in with precedent for the absolute duty. Much of the legal precedents were with lift winding gear in mines, particularly with rope breakages even with strong maintenace systems. Bob
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#13 Posted : 04 October 2001 13:02:00(UTC)
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Posted By Diane Warne The case Richard refers to was Stark v the Post Office 2000. The Court of Appeal ruled that a postman injured while riding his Post Office bicycle was entitled to damages, even though the defect that caused the accident would not have been detected during even a rigorous examination of the bicycle. The PUWER duty, said the court, was absolute. It was a bit of a weird one, because it seemed that the employer really could have done nothing to prevent the accident, because it was due to a hidden defect. They had kept the bike well maintained.
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#14 Posted : 04 October 2001 14:11:00(UTC)
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Posted By Richard Thanks Diane. I couldn't find my original reference anywhere, and was beginning to think I had dreamt it! Laurie
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