Negligence rule on temp drivers
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• Driver agencies may have to rethink key clauses in their standard terms of trading, which excuse them from liability for negligence by temporary drivers supplied by them.
Devon haulier Ace Tip has successfully challenged the terms, which Taunton County Court ruled to be unreasonable under Section 2 of the Unfair Contract Terms Act 1977, and therefore unenforceable.
The judgement (Kenarah Ltd vs Ace Tip Ltd) could have farreaching affects.
Ace Tip, a waste contractor, had to hire trucks and drivers to handle a major cotitract, and turned to an agency for the first time.
One of Travail's drivers blew the engine on a hired Mercedes tractor and another damaged a trailer on his first day on the job. Negligence was admitted by both drivers, but the agency denied liability.
The case came to court when Travail sought to recover 24,000 from Ace Tip, which the haulier held back to cover the cost of repairs.
In his ruling last week, the judge noted that Travail had stated in writing that it was the "full employer" of the drivers, and that charges included payroll costs and National Insurance contributions.
Under the terms of the 1977 Act, the judge took account of the relative sizes of Ace Tip, a local firm, and Travail, which has a national network of owned and franchised offices.
On a separate issue, the judge ruled Travail to have been negligent in respect of one driver, the brother of Travail's driving manager Graham Yates, who had very limited experience.
"If a company is providing drivers for reward who must drive unfamiliar vehicles in unfamiliar locations the drivers must, in my judgement, be reasonably experienced," he said. "The hirer is entitled to expect that he is not going to be provided with a newly qualified or inexperienced beginner."
The judge ruled against Travail on all points and awarded costs of about £5,000 on each side against it.
The disputed terms of trading are industry standards and are approved by the Federation of Recruitment and Employment Services, They are comparable to the RHA Conditions of Carriage.
If the ruling is widely applied, "this industry is going to have to re-write all its contracts", one agency boss has told CM. "The ruling has enormous implications."
Stephen Allinson, partner in law firm Clarke Willmott & Clarke, says: "What the judge is saying is that it is not right for agencies to be able to shift the burden on to hauliers. Every case can turn on its facts."