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CharlieUK  
#1 Posted : 10 January 2018 10:59:57(UTC)
Rank: New forum user
CharlieUK

Hello,

I'm new to this forum, but have been in the HSE profession a number of years - but this is a new thing for me that I have come across.

We had a Delivery Driver reversing on our site with a Banksman watching the rear of the vehicle due to cars and on-coming on-site vehicles. 

The driver as turning hit the front bumper and wing-mirror on the HGV on a container as they were turning. 

The banksman could not see this point of the vehicle due to the angle, yet the driver could see this. 

The haulier is putting sole blame down to us and our banksman?

Where do i stand in terms of legislation (if any?) and who is responsible for this damage?

Thank you kindly, Charlie

A Kurdziel  
#2 Posted : 10 January 2018 11:22:26(UTC)
Rank: Super forum user
A Kurdziel

Well this has nothing to do with criminal law so RTA and all that does not apply.  That leaves civil action for negligence which of course something down to common law driven by court precedence, rather than any specific legislation.  I am assuming that the driver’s company is threatening to sue your company for compensation on the grounds of negligence by your banksman using the principle of your vicarious liability for your banksman’s actions.

To claim for negligence you need to prove 3 things:

  • Duty of care owed
  • Failure to discharge that duty
  • That failure to discharge that duty leading to a loss.

So yes you had a duty of care to that driver and that lorry. Was there a failure to discharge that duty? Moot point and since you claim the incident happened at the front of the vehicle and the banksman was at the back, it becomes even more moot.

Have they actually made a claim? Has it been passed on to your insurers? If so what do they say?

fairlieg  
#3 Posted : 10 January 2018 11:31:14(UTC)
Rank: Forum user
fairlieg

The "legislation" that would cover this would be the site rules.

So for example if the site rules required that vehicles may not reverse without a banksman then who ever provides the banksman should ensure that there is an effective process in place.

I think in this case there would be an element of shared negelgence, clearly the haulier will try to apportion blame to you as you would to them.  Pass the informaiton to your insurers and let them deal with it.

Learn from the incident and improve the banksman process regardless of who is deemed blameworthy, next time if might be a person the HGV hits not a container.

CharlieUK  
#4 Posted : 10 January 2018 11:32:19(UTC)
Rank: New forum user
CharlieUK

Originally Posted by: A Kurdziel Go to Quoted Post

Well this has nothing to do with criminal law so RTA and all that does not apply.  That leaves civil action for negligence which of course something down to common law driven by court precedence, rather than any specific legislation.  I am assuming that the driver’s company is threatening to sue your company for compensation on the grounds of negligence by your banksman using the principle of your vicarious liability for your banksman’s actions.

To claim for negligence you need to prove 3 things:

  • Duty of care owed
  • Failure to discharge that duty
  • That failure to discharge that duty leading to a loss.

So yes you had a duty of care to that driver and that lorry. Was there a failure to discharge that duty? Moot point and since you claim the incident happened at the front of the vehicle and the banksman was at the back, it becomes even more moot.

Have they actually made a claim? Has it been passed on to your insurers? If so what do they say?

Hello A Kurdziel,

Many thank for the prompt reply.

We had a banksman at the rear of the vehicle as due to the site layout there is sometimes on-coming site car travelling due to the time of the day. A trained and competent banksman was at all times in clear visibility of the driver and aiding with the reversing manouver. 

Yes we provided DoC in assisting with the reversing of the vehicle. We didn't fail in assiting with the reversing The damage was at the front of the HGV which our banksman could not see due to positioning to allow for safe reversing.

Moot point indeed, that it happened on the drivers near-side; which only he could see, as with communication with the driver our banksman was to be positioned at the rear. If he was in control of the vehicle then surely he should have been checking with both the banksman and the front of the vehicle to ensure safe, and not total reliance on our banksman?

They have not made a claim, but currently with e-mail communications they are expecting use to compensate for the damages to their vehicle. 

Regards, Charlie

CharlieUK  
#5 Posted : 10 January 2018 12:07:08(UTC)
Rank: New forum user
CharlieUK

Originally Posted by: fairlieg Go to Quoted Post

The "legislation" that would cover this would be the site rules.

So for example if the site rules required that vehicles may not reverse without a banksman then who ever provides the banksman should ensure that there is an effective process in place.

I think in this case there would be an element of shared negelgence, clearly the haulier will try to apportion blame to you as you would to them.  Pass the informaiton to your insurers and let them deal with it.

Learn from the incident and improve the banksman process regardless of who is deemed blameworthy, next time if might be a person the HGV hits not a container.

Hello Fairleig,

Thank you for replying. 

Yes, valid point regarding site rules. For the area where this vehicle was reversing it was more of an assistance than a site rule due to the location of the vehicle. We have site rules when it comes to reversing into the loading bays, but this unfortunately was ad-hoc and more of an assistance. 

Regards, Charlie

Roundtuit  
#6 Posted : 10 January 2018 12:17:37(UTC)
Rank: Super forum user
Roundtuit

Driver - he was the one operating the vehicle

By example if I proceed based upon another driver flashing their lights (commonly perceived as a give way) and have a collision it is solely my fault as I am the one "in charge" of the motor vehicle

Hsquared14  
#7 Posted : 10 January 2018 12:56:35(UTC)
Rank: Super forum user
Hsquared14

As others have said this is a civil matter not criminal so law doesn't really come into it.  I would agree that the ultimate responsibility lies with the driver of the vehicle - they are in charge of the vehicle and in reality they don't have to obey the banksman if they think his direction will cause an accident.  I would bounce the whole thing back at them, your banksman was responsible only for giving guidance on reversing safely not on how to avoid all obstacles on the site.  If the banksman was unsighted then there is no question really.   Do you have CCTV?  if so provide it to the contractor it should prove the point admirably, their driver drove his vehicle into a container. 

RayRapp  
#8 Posted : 10 January 2018 13:28:28(UTC)
Rank: Super forum user
RayRapp

This is one for the insurance companies to sort out. They will aportion blame according to industry conventions.

Personally, I think the responsibility for the incident lies with the driver.

boblewis  
#9 Posted : 10 January 2018 14:22:56(UTC)
Rank: Super forum user
boblewis

I am going to pose the opposing view and place responsibility on the company - A bank person must be able to view the whole vehicle movement or utilise a second or even third person to assist.  I would also suggest that the rear of the vehicle is the wrong place for a controlling bank to stand so your training may be in error.  Think armed forces and aircraft, tank etc  movements - where does the bank stand?  At the front and the driver merely faces forward and obeys instructions.  Banking vehicles should only be done by trained experienced persons. Some 20-  25 yrs ago site workers banked a vehicle alongside a trench and the front wheel went into the trench - the construction company received a PN  for reversing control and training. Never allow ad hoc assistance

Edited by user 10 January 2018 14:23:54(UTC)  | Reason: Not specified

RayRapp  
#10 Posted : 10 January 2018 16:36:25(UTC)
Rank: Super forum user
RayRapp

In most circumstances I don't think it is practical or necessary to provide two or three banksman for one vehicle movement. Difficult enough normally to find one Banksman. 

Whilst the Banksman should not stand directly to the rear of the reversing vehicle but to one side at the rear, they cannot be expected to control the front of the vehicle as well. Surely, the driver must be responsible for ensuring the front end of the vehicle does not come into contact with an object or person?

Bigmac1  
#11 Posted : 10 January 2018 19:47:03(UTC)
Rank: Forum user
Bigmac1

I agree with Rayrapp, insurance job, leave them to it

Roundtuit  
#12 Posted : 10 January 2018 21:02:20(UTC)
Rank: Super forum user
Roundtuit

And the march of autonomous vehicles is forcing both legislature and insurers to consider their current position as the existing regulations always defer to the operator of the vehicle being responsible

boblewis  
#13 Posted : 10 January 2018 21:49:03(UTC)
Rank: Super forum user
boblewis

So the driver is expected to look two ways at the same time?

Roundtuit  
#14 Posted : 10 January 2018 21:59:40(UTC)
Rank: Super forum user
Roundtuit

How did they get their licence if not?

Hsquared14  
#15 Posted : 11 January 2018 10:49:57(UTC)
Rank: Super forum user
Hsquared14

I agree with Round Tuit - the driver is responsible for making safe vehicle movements, the Banksman can only guide.  Additional bansmen would create more confusion and lead to more incidents.  As a driver you should be scanning each corner of his vehicle and not just watching the banksman.  Can I give you an analogy - someone I know tried to excuse themselves from a speeding fine by saying they couldn't watch the road and their speedo at the same time.  Cue police investigation into that person's fitness to drive!!

boblewis  
#16 Posted : 11 January 2018 15:12:47(UTC)
Rank: Super forum user
boblewis

Once you place a bank/signaller into the mix HE takes control of all movements.

chris42  
#17 Posted : 11 January 2018 16:54:20(UTC)
Rank: Super forum user
chris42

Someone kindly directed me to this a few years ago and may help you. Is is about refuse vehicles, but the theory is the same and HSE were consulted.

The manoeuvre is the driver’s responsibility! not the banksman or reversing assistant. Yes, you can stand to the rear of the vehicle if a banksman / reversing assistant, otherwise you will only be able to see the same as the driver! You must be in a safe place and be able to see the driver in the mirror (and they see you).

https://wishforum.org.uk/wp-content/uploads/2017/02/WASTE-04.pdf

Extract

Drivers

6.2.2 The final decision to reverse or not is made by the driver, providing that they: § Have been adequately trained in the organisation’s policies and procedures (including the use of reversing assistants) and are competent to carry them out § Have established that the reversing zone is free from pedestrians and obstructions § Take account of the pre-agreed signals given by the reversing assistant (where used)

Chris

Edited by user 11 January 2018 17:01:02(UTC)  | Reason: behind changed to read "to the rear of"

thanks 1 user thanked chris42 for this useful post.
PH2 on 12/01/2018(UTC)
boblewis  
#18 Posted : 12 January 2018 09:25:53(UTC)
Rank: Super forum user
boblewis

Originally Posted by: chris42 Go to Quoted Post

Someone kindly directed me to this a few years ago and may help you. Is is about refuse vehicles, but the theory is the same and HSE were consulted.

The manoeuvre is the driver’s responsibility! not the banksman or reversing assistant. Yes, you can stand to the rear of the vehicle if a banksman / reversing assistant, otherwise you will only be able to see the same as the driver! You must be in a safe place and be able to see the driver in the mirror (and they see you).

https://wishforum.org.uk/wp-content/uploads/2017/02/WASTE-04.pdf

Extract

Drivers

6.2.2 The final decision to reverse or not is made by the driver, providing that they: § Have been adequately trained in the organisation’s policies and procedures (including the use of reversing assistants) and are competent to carry them out § Have established that the reversing zone is free from pedestrians and obstructions § Take account of the pre-agreed signals given by the reversing assistant (where used)

Chris

Please note the provisos and the decision to go ahead is indeed the drivers as he is going to rely on the signaller.  He can indeed refuse then to perform the reverse manouevre.  Note also that there is also the need to be fully familiar with company procedures

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