Road Crashes and Corporate Manslaughter
20 March 2008
What Does the Corporate Manslaughter and Corporate Homicide Act 2007 (coming into force on 6th April 2008) have to do With Fatal Road Accidents?
The answer is quite a lot according to the British Safety Council’s Safety Management magazine, which predicts that the first corporate manslaughter prosecutions are likely to arise from work related road accidents. They expect the Police to be keeping a close eye on any work related road deaths and that theywill be cracking down on any employer they see as negligent. Given the thoroughness with which Police usually investigate a fatal RTA and that the Police (not the HSE) are to be tasked with prosecuting the new offence of corporate manslaughter, investigations are increasingly unlikely to stop with the driver. We may now see the Police look more proactively at the risk management failures of the at fault’s driver’s employers, rather than focusing narrowly on the behaviour of the driver himself. Superintendent Mark Bird of the Metropolitan Police Traffic Unit said this year, Just as employers would make sure that employees are safe in the workplace, so they should while they are on the road. Businesses must face up to their duty of care responsibilities and realise that they are responsible for employees’ welfare when on the road for business purposes, whether they are driving a company vehicle or not.
An employer can already be prosecuted (or face a civil claim for compensation) following a fatal RTA the general duty to minimise risk under Sections 2 and 3 Health and Safety at Work Act 1974 are just as applicable to workers who are on the road as in the factory or in the office. Additionally the Management of Health and Safety at Work Regulations 1999 require employers to carry out a suitable and sufficient assessment of all risks to which an employee may be subject at work, including out on the road. A vehicle is also “work equipment” for the purposes of the Provision and Use of Work Equipment Regulations 1998, which impose various duties on the employer; in particular ensuring the vehicle is suitable and properly maintained. An employer can also be guilty of “causing or permitting” the commission of various motoring offences. However now that “occupational road risk” is being talked about by lobbying groups and in the safety press, coupled with the publicity surrounding the new Act, we can expect to see the involvement of the employer as a more common feature following a serious RTA.
In R –v- Roy Bowles Transport (1999) two company directors were convicted of the manslaughter of two drivers killed in a pile up on the M25 after one of them fell asleep at the wheel. It was found that company drivers worked excessive hours, with the knowledge of the directors. They received fifteen months and twelve months suspended prison sentences respectively (and the driver a two and a half year sentence in jail for causing death by dangerous driving). The sentences suggest that in Bowles the driver was ultimately most to blame. However that will not always be so. In the personal injury compensation claim of Eyres –v- Atkinsons Kitchens last year the Court of Appeal looked at the relative blameworthiness of the driver and his employer. In that case Mr Eyres (aged 20) and his MD (Mr Atkinson) met in Bradford at 3.30am in order to fit a kitchen in Swindon 111 miles away. They shared the driving and started work at 8.00am. They finished at Swindon at 2.30pm. They continued to Sidmouth, Devon (another 122 miles), stopping briefly to pick up a KFC meal which they ate on the move. They undertook the Sidmouth job between 6.00pm and 7.00pm. Then Mr Eyres started driving home. He asked his boss if they were going to stay somewhere overnight (since they had brought overnight bags), saying he was “knackered”. His request was refused and he carried on driving, while his boss slept in the passenger seat. The MD’s favourite catch phrases were reportedly “eating’s cheating” and “you can sleep when you are dead”. After one stop for fuel an accident occurred at approximately 9.53pm in which the Claimant was seriously injured. There was much debate as to whether this was caused by the Claimant falling asleep at the wheel (as well he might following such a gruelling schedule) or by sending another text to his girlfriend whilst at the wheel, which he was proven to have been doing at speeds in excess of 70mph earlier that evening. Having heard from forensic engineers, the court found as a matter of fact that the Claimant must have fallen asleep at the wheel. The Court of Appeal found Atkinsons liable to pay damages, since they had forced Mr Eyres into having to drive in a state of exhaustion and (having gone to sleep himself) Mr Atkinson was doing nothing to guard against the very risk of injury from which he ought to been saving his employee i.e. he should at the very least have been helping Mr Eyres to stay awake. The court found Atkinsons to blame, but with a one third deduction to reflect Mr Eyres’ own contribution to the accident of which 25% related to not wearing a seatbelt and only 12% to driving knowing that he was tired.
If the same facts occurred after 6 April 2008 and Mr Eyres (or a third party was killed rather than seriously injured) this incident would tick all the boxes for a successful corporate manslaughter prosecution namely:-
- A duty of care – of course motorists and their employers naturally owe a duty of care to drivers and other road users.
- Failure in the way the company’s activities were organised (management failure).
- A causal link between the management failure and death.
- Gross negligence.
And the sentence? The sentencing advisory panel has just recommended a starting point for a fine of 5% of annual turnover. The new Act controversially does not impose sanctions against directors and senior managers personally. The offence can only be committed by the body corporate. However in case serious enough to warrant a prosecution for corporate manslaughter, directors and senior managers may find themselves prosecuted in parallel under existing legislation (Section 37 Health and Safety at Work Act 1974 for example) or under the existing law of manslaughter like the directors in Bowles referred to above.
How Can Employers Reduce Their Occupational Road Risk?
A good starting point would be examining the HSE’s work related road safety homepage at www.hse.gov.uk, where guidance entitled Driving at Work – Managing Work Related Road Safety (indg382) can be downloaded free of charge. A proper risk assessment should be carried out pursuant to the MHSWR 1999, identifying risks arising from vehicle use and then applying the principles of prevention under Schedule 1 MHSWR to those risks. These could include:-
- Driver Health and Competency;
- Vehicle Suitability and Condition Load Working;
- Route Planning and Scheduling;
- Weather Conditions;
- Safely Reversing and the use of associate devices such as CCTV and reversing alarms.
- Eyesight;
- Drugs and Alcohol Screening;
- Vehicle and Load Inspections.
Andrew Clarke, Associate, Brachers
Latest Events
- May 2008
Forthcoming Events
