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The IRK

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Despite a legal defeat in the Lords last week legislation on corporate manslaughter is on its way. We asked the members of the Commercial Motor operators' panel for their verdict. Pat Hagan reports.

THE CONCERNS

It's human nature to try and pass the buck when things go wrong. But when a mistake due to negligence culminates in a fatality, somebody has to be held accountablc.That's one of the reasons why the government is pursuing new legislation on corporate manslaughter.

Under existing laws, organisations can be convicted only if a single individual at the very top of the company is judged to be personally liable. This is notoriously difficult to prove, as the decision-making process in large companies can involve dozens of people.

To date there have been fewer than 10 successful prosecutions under corporate manslaughter legislation and most of them have been small firms rather than corporate giants. Under the planned changes, companies themselves will be punished with unlimited fines if found guilty, rather than individual bosses or employees being jailed.

According to the Freight Transport Association, the new legislation has significant implications for hauliers. A key feature is that corporate responsibility may extend beyond the company or operator directly involved in an accident to the consignors.

"It could extend the chain of responsibility up into the bigger logistics companies," says FTA deputy chief executive James Hookham. "It could affect a company that has knowingly hired a less-than-compliant operator or failed to check it has an 0-licence, and that operator is then involved in an accident where someone is killed.

"It's no defence to say you just didn't realise an operator had no 0-licence because it's now so easy to check," he adds. "It simply involves a telephone call to Vosa." If it ever gets on to the statute books, the new bill is not likely to take effect until later this year or next year.

But what does the industry think? We asked the Commercial Motor operators' panel for their views on the planned changes to corporate manslaughter legislation. • PAUL ARTHURTON Paul Arthurton Transport Norfolk The new bill is nothing to be frightened of, Arthurton believes. In fact, it could be a good thing all round.

When you despatch a member of staff to operate machinery in the public domain, then you have to take responsibility for it being safe," he says. "I'm not averse to this bill at all because I think it provides another level of Insurance that equipment is being used in a responsible manner."

Arthurton even believes the new bill could help alienate what he calls the cowboy element' in haulage: "If firms have to make sure operators they hire are operating legally, that must be a good thing.

"If you knowingly use a subbie who has no insurance or no 0-licence then perhaps you are responsible.

"Who knows," he concludes, "it might even force rates up a bit."

ADAM PURSHALL TM Logistics Medley, Worcestershire Purshall is not unduly worried about the prospect of new corporate manslaughter legislation. But only because he believes the industry is so

Adam Purshall

over-policed already that one more bill won't make much difference.

This is an issue we are aware of.'' he says. But its not something we are specifically addressing just yet.

"I think we are already in a situation where health and safety issues are top of the agenda. This is just another piece of legislation that in some respects makes it easier to prosecute companies."

The company plans to brief its 200 or so drivers on the implications of the bill nearer the time it enters into law. The issue is likely to come up during its regular feedback sessions with drivers to gauge their reaction to new rules.

IVIALCOLM MILLARD MGM Haulage Flextord, Southampton Millard believes the whole issue of corporate manslaughter legislation is fraught Malcolm Millard

with difficulty.

The complex web of working relationships in a medium-to-large haulage firm means it is practically impossible, in many cases, to properly apportion blame, he says. "If a truck is involved in an accident and there's a defect, who's to blame the driver, the transport manager, the chief engineer, or all three?"

But he does fear that modern servicing regimes may increase the scope for potential defects on vehicles to go unnoticed: -In the past, vehicles would regularly come in for an oil change, and at the same time they would get an inspection to make sure they were safe.

"Now, some don't have oil changes for up to 40,000km so they don't get those inspections."

Millard believes the first few test cases under the new legislation will be vital as they will give operators an insight into the real risk of prosecution.

MARTIN BARNES

Project manager Logistical Support Services Bristol

Like others. Barnes believes the new legislation could be a good thing if it really does force those in the industry to re-examine their own responsibilities when they subcontract work out. But he's doubtful that it will have this effect.

-If it stops drivers going over their hours or getting deliveries, whether they are legal or not, then it could be one of the best pieces of legislation ever to come our way," he suggests.

"When it comes to subcontracting, too many people simply take their cut and run," Barnes concludes. "Nobody should expect to be able to take on a job and not expect flak if it goes wrong."

CHARLES BURKE

IRS Engineering Rhonda Valley

Owner-driver and truck dealer Burke sees everything in road transport from the viewpoint of a small company. And he's worried the small firms will bear the brunt of the new legislation: "I see this as a recipe for disaster for small firms. They are more vulnerable than the large corporate bodies.

"The cost of defending such cases could put many firms out of business. A haulier running 10 trucks does not have the same resources as someone like Exel." Burke's worry is that no matter how diligent they are, sometimes bosses can do nothing about the rogue individual who refuses to do things by the book. He fears that should that individual cause an accident involving a fatality, his employer might take the rap.

NICK MATTHEWS Logistics manager Denholm Industrial Services Yeovil, Somerset Matthews reckons it's important to keep the new legislation in perspective. He believes that even if there are more prosecutions, it will still affect only a tiny minority of hauliers.

That said, he believes many road transport firms may have to revisit their working practices to make sure they have a proper defence to fall back on if they ever land up in court.

"We are all going to have to look at our procedures and make sure we have covered ourselves," he says. "We need to ensure everything is being done by the book. That's always a good thing. But my worry is that, in a big company, are those at the top sometimes too far removed from the daily operations to know what's really going on?"

ED PARGETER Director. EP Training Leatherhead, Surrey "An extremely good thing," is Pargeter's verdict on the planned legislation.

It means operators will have to be able to prove they have risk-assessed all of their activities. Ell Pargeter ''That includes ensuring their drivers have received training and that they have documented it."

Pargeter believes a proper audit trail of risk assessment would be an operator's key defence if a case of corporate manslaughter ever came to court,

''We find more and more companies are doing risk-assessment training," he reports. They are becoming more aware of their obligations under health and safety. I'd say about three out of four firms now realise the benefits of assessing all their activities.

"In the past, if something serious happened, all of a sudden companies would want their drivers trained. But a lot of companies now look to the future."

KEVIN BROOKE Managing director FleetMaster Operational Support Services Leeds The new legislation won't stop genuine accidents from happening, Brooke warns. But he agrees with other panel members that the onus is on bosses to make sure they have taken all reasonable steps to reduce the risks.

"This is a bit of a wake-up call," he suggests. "From a director's point of view, it's clearly important to be able to show that you took every step necessary to improve safety, such as driver inductions, vehicle servicing and driver assessments.

"Everybody has to show due diligence. For example, the EU Training Directive is coming in soon and everyone seems to think they can wait for it to take effect before they do something about it. They should be thinking about it now."

Brooke points out many of the operators he deals with are blissfully unaware when new legislation is coming in — whether it's the training directive or corporate manslaughter. But he stresses that awareness is not just a straightforward split between big and small players.

"There's no set pattern,' he adds. "We deal with everyone from the big PLCs to the one-man bands. In some parts of the industry there's a big hole in people's awareness." • New law might force operators to re-examine their working practices.

• It could flush out 'cowboy' operators subcontracted on the cheap.

• It means all firms will need a proper paper trail proving they've done all they can on health and safety.

• The number of prosecutions is likely to remain low.