Simon: Welcome to Let’s Talk Fleet Risk – a podcast for those who manage drivers and their vehicles, and want to reduce road risk in their organisation.

My guest this month is a legal expert in the field of transport and regulatory law. It’s Chris Green, who is a partner at law firm Keoghs. Welcome to the podcast, Chris.

Chris: Hello, Simon. How are you?

Simon: Very well thank you. Now, I’ve asked Chris onto the show because we’re partnering with Keogh’s to present a mock trial prosecution of a van operator at this year’s Health and Safety event at the NEC later this month. The mock trial presentation will be on Wednesday 26th April in DfBB’s own Driver Safety Theatre – and I’ll give out full details at the end of the podcast.

Now Chris, I don’t want to give the game away as to what happens during this prosecution, but I do want to give a preview of the scenario and then discuss in some broad terms some of the issues that we’re going to be looking at in the presentation.

So, the scenario – roughly speaking – is that a van driver struck a cyclist shortly after starting a morning shift. And it’s a serious incident, with the cyclist taken to hospital and he’s in a pretty bad way – the police have classed his condition as critical. The police would then obviously conduct a roadside investigation to find out what had happened and to find out whether the driver was at fault – what might have happened that had gone wrong. So what would they be looking for in that investigation?

Chris: A couple of things. In the first instance they would have Forensics and Scenes of Crimes Officers present, to see – for example – where there were broken fragments from the car, and to indicate where the collision had taken place. So that might assist in terms of the position of each vehicle in the road, or to gather witness statements from those who were present. These days we see a lot of this is covered by dashcam footage or other CCTV – so that element of the job, many years ago when I started, I’m afraid has gone out of it. So that’s all done for us on a very high-tech, automated level these days. They would be interviewing the driver at the scene and checking suspected drugs or alcohol issues. They’d be asking to see the mobile phone records and potentially seizing it as well. And in addition to that they would be trying to obtain accounts from anybody present and to check the welfare of anybody injured in the collision, including the driver and anybody else as well.

So there’s a number of things they would be doing, and then of course the investigation would carry on afterwards where they would begin the interview process.

Simon: What about the state of the vehicle? How much attention would they give to the roadworthiness of the vehicle at that point?

Chris: It’s absolutely critical, because if there were any suggestion that there were mechanical failure that was either outside of the control of the driver, or something that had manifested itself between the time they started the journey and the time of the crash, then they’ve got to at least explore that possibility before they can decide how blameworthy the driver was. Occasionally I’m afraid, there are still cases that we deal with where there are examples where the vehicle just wasn’t in a serviceable condition, and on that basis it’s a different scenario in terms of trying to establish guilt.

Simon: So, we know that in law the driver is usually responsible for ensuring that the vehicle is safe and that they drive within the highway code. So, what potentially could lead the collision investigators to look beyond the driver and at the employer?

Chris: Well, the employer has still got a duty to protect both the employee who’s driving the car and anybody else who might be affected by that. And in addition to that, any employees who may be carried in the vehicle at the same time as the driver. So, that obligation is actually quite wide. If, for example, there were any suggestion that the employer wasn’t carrying out either mechanical inspections, or didn’t have a policy on the use of mobile phones, drugs and alcohol, eyesight, and these sort of issues, and monitoring the hours that the driver was working… then these days, those are all aspects that the police can and will be looking for. Because there is the potential to bring in the employer as well.

Simon: You mentioned policy there, so let’s delve a little deeper into that. Whenever I’ve seen prosecutions like this in the press, normally reported where there’s are a fatality, they seem to hinge around policy. And those that are found guilty have either failed to implement or failed to follow and establish policy, whereas employers that are found not guilty were generally able to prove that they did have the right policies in place, and that they were rigorously followed and monitored. So, what typical examples do you see of poor practice from a policy point of view, and more importantly what impact would this have on their case in court?

Chris: The thing is with prosecutors, sometimes I wonder whether my opponent is believing that the very fact that an accident has taken place is evidence of the breach. So in other words, you couldn’t have had an accident if all was complied with, and that in itself generates the suspicion that they’re negligent. I’m not sure it’s quite like that, but take for example a case I had recently where it was a company which was really loath to be amending their mobile phone policy. We sat down and, once we’d really spent some time to consider whether the mobile phones were actually necessary in the business, through gritted teeth some people had to concede that actually they probably didn’t need it. So, really, the answer to your question is that they’ve got to be really clear on the test of reasonably practicable. And there is a balance to be struck between the cost and the time and the inconvenience on one side of things – in terms of implementing further measures – and on the other, the risk involved.

So, if that is balanced for example against a serious or fatal incident, then the bar is set quite high. And I think in the first instance, a court and a police prosecutor might want to prove that they’ve actually considered all of the right factors. They’ve then, as you say, got to implement anything that comes out of that process, and then critically, to follow it on the road as well. So it is quite an onerous duty, but whenever things go wrong, with reverse engineering, they would be looking to see whether that’s all been done as it should have been.

Simon: Now, we’re going to be prosecuting a company in our mock trial presentation, so, it’s a fictitious incident obviously but the investigation in this case must have obviously raised some serious concerns about the way the company managed driver safety. And you mentioned a couple of things there that a policy needs to include – mobile phones, driver fatigue, that kind of thing – there are other things as well like driver checks, vehicle defect reporting, that kind of thing. These are all things that should be included in a policy, so how would you expect companies to manage these things and what impact does managing it poorly have in a prosecution?

Chris: Well, the onus is on them. The balance of probabilities there that they would need to demonstrate – i.e. it’s more likely than not that they comply – but the key point is the onus is actually on the company to prove they’re innocent rather than the other way around. So, if I’m prosecuting Health and Safety offences, all I need to show is that the individual was an employee – well that’s usually straightforward, that the company employs people – and that there had been an accident. So, as soon as I’ve established those two factors as a prosecutor, then the onus shifts to the defendant – in this case the company – and they would need to prove they’d done everything they reasonably could, and there’s law on that that suggests that that’s got to be not only in disproportion, but it’s arguably got to be grossly disproportionate, and it’s only those things that you’re entitled not to do as a company.

If roughly the time and the expense involved in putting that measure in place doesn’t look totally out of kilter with the risk of a serious or fatal accident, then really the onus is on you to take that step, or at least explain – having gone through the assessment process – why you don’t think it’s practical. So, be it on your head, and then – as you say – it’s then got to be followed through by the individuals out on the road.

Simon: So, the onus in on the employer to prove that they’re innocent. That would suggest that record-keeping is pretty important, yes?

Chris: Well it would. It’s really sad in my line of work where it’s quite clear that a company has good processes and the custom of practice is that it’s usually followed by people. But of course, many times where there has been a fatal accident, the absence just of one document ironically could be the one that would prove that the measure the company needed to demonstrate it had taken – there’s just no evidence on the point. So, some HSE inspectors say to me that the absence of evidence is evidence of absence – so if it’s not documented it didn’t exist. So, I’m afraid it won’t be the first time a lawyer’s said this, but the key point behind what you’ve said is that you don’t just need to take the step, you need a mechanism to gather and collate and keep the proof of that as well, else it does leave you fairly vulnerable as I’m sure we might see at the trial.

Simon: It’s not just proving that you’ve done something, you’ve implemented a step or a policy now I guess, is it. Because, a key part of this is ensuring that you monitor compliance of that step or policy or procedure – whatever it