Posted By Steve Wood
This came up while during a review of our company vehicle policy.

Our company vehicles have a tracking system that logs speed as well as location.

Imagine a serious accident, during work, involving injury or death.

Could the company be fully or partially liable BEYOND normal Employer's liability, perhaps under a civil case, if the driver could be shown to have been driving frequently at excess speed, but the company had taken no action?

Thought I'd try to get this solved while it's still hypothetical!

Posted By Jonathan Breeze
Just to add:

The example I gave appears to suggest criminal liability rather than civil liability 'beyond normal Employers Liability'.

Does that help?

Posted By Paul Swift
It probably won't help much, but under tachograph regulations for vehicles fitted with them (commercial vehicles over 7.5 tonnes), there is a requirement to ensure drivers are maintaining their driving hours correctly. Any failure to enforce the hours leaves the company open to prosecution as they have knowledge of the offence.

I seem to recall that obvious speeding must also be brought to account although this is more diffiult as there is no record of where the vehicle actually is at any time on a tachograph.

Posted By Robert S Randall
Employer would be vicariously liable because the employee is acting in the course of his/her employment.

If a third party is injured or killed as a result of the employee's actions they or their relatives would be able to mount a civil action for damages against both the employee and the employer.

Bob Randall

Posted By John Murgatroyd
This pre-supposes that it is possible to ascertain who was driving at the time.
If the vehicle/s are driven by several employees then it may not be possible to tell with certainty which was driving at the time. Given that employees will frequently tell other than truth to protect themselves and others !
It may be necessary to allocate a single driver or a system of logging to solve the problem, if any exists.

Posted By Paul Swift
The driver is generally seen as having absolute responsibility for safe operation of their vehicle. This certainly applies to issues such as speeding and parking etc. Use of an untaxed vehicle will often be referred back to the vehicle owner, although there is the facility to prosecute a user as well.

The responsibility can also include things that a driver may not necessarily have control over, for example the number of cases of truck drivers being prosecuted for transporting illegal immigrants that have sneaked aboard thier vehicle without the knowledge of the driver. Overloading can also be outside of the drivers control if a container has been badly weighed. It is still the driver who would be prosecuted for an over weight vehicle.

Their is a requirement for fleet operators to ensure they have knowledge of who is using a particular vehicle. This is specific under the regulations allowing prosecution by post from 'safety' cameras. If it cannot be established who was driving at the time of the offence the transport manager or company secretary (depending on circumstances) will be liable for prosecution. With a poorly managed fleet, this could end up with the company secretary being banned whilst never having driven a car!

Posted By John Murgatroyd
As an employee of a company that runs two 35cwt transits and a 7.5 tonne truck (plus 5 company cars) I can state that there have been 3 possible speeding cases not proceeded with because it could not be established who was driving. at the time the offence was committed. Neither director was prosecuted and nor was the company sec. I think you'll find that proceedings are only started if it is considered that it is likely that they are deliberately trying to avoid prosecution.

Posted By John Murgatroyd
You are assuming a single known driver.
Company vehicles frequently have several drivers.
In the case of speed cameras, the camera may not be visited for several days to retrieve the image storage media.
For the vehicle operator to know who was where, and when, they would have to keep good records.
There is, as far as I know, no legal requirement for this. Vans are not required to use tachographs, although there may be exceptions in the case of those fitted with towing hitches and trailers.
In the case of accidents, there is the legal requirement to stop anyway.

Posted By John Webster
Stuart

I have just watched a local building firm at my house, with 6 or 8 guys on site. At any time, any one would drive off in the van to get materials, sandwiches or whatever and there would not have been any records if an offence had been committed on one of those trips. I expect that there will be many "pool" vehicles used in this way.

Posted By Mike Miller
First impression is that if your company has had these devices fitted (at much expense) then it may be viewed by the man with the wig and gown that you were aware of the problem and therefore reasonably forseeable!

I think that you may be asked to produce evidence of a risk assessment or written company policy on transport as well as demonstrate what steps have been taken by way of training for new drivers and correctional training for existing offenders/drivers. (as previously mentioned before)

As this is all a bit previous at present but it might be usefull to to make an example of a few offenders who have been clocked to bring the many into line!

Don't want to depress anyone here but company driver kills 85 year old granny on crossing makes good headlines and poor corporate image. Any of my drivers who break company rules are repremanded and made to hang up their van keys and use public transport for a few weeks. Believe me it has a possitive effect on behavioural change.

I know I'm a hard hearted man!

All the best to you all.

Posted By Mike Miller
John
Health and safety may fail in some workplaces and it may suck in others but without it we will all be a lot worse off.

If a risk assessment fails it is not always the fault of the safety advisor. More so it is because of a management failure. Companies can put all the building blocks in place but if they do not engage the workforce or take action for breaches of safety policy, then that is a mangement failure.

As for the HSE they have as usual a financial crisis and can only respond in some instances. They are not the answer. The answer is to try and develop a good health and safety culture. One where management and the workforce work together to overcome problems.

Weed out those who are the risk takers (the wilfull employee) and the managers who think they know best.

Don't get angry get safe! make it work.

Posted By Steve Granger
Just to add some good news for the season - did you all realise that these devices now come under the Data Protection Act (just like cctv in the workplace)so your organisation requires a written policy on their use to monitor employee activities. The guide to the DPA has a specific section on vehicle tracking. Happy New Year!!
Steve Granger

Posted By Chris Abbott
John - did you post your response in the wrong thread ? I'm confused!!

:)

Posted By John Murgatroyd
No it's not in the wrong place. I just lost the plot somewhere.
Although I should point out that when you have a management relying on procedures being followed without checks, and a workforce that knows the management aren't bothered, you have an accident waiting to happen.
That also follows for the companies liability re motor accidents, speeding et al.
Very shortly, if the company cannot identify the driver of a vehicle, then a director will have both the fine and the points (if any).