LEGAL COMMENTARY: SEASONAL OFFENCES
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low to defend a orosecution
MIAre different types of offences seasonal? In the sense that some problems are clearly linked to the weather that is probably true; in the other cases the cause is less evident. However that may be, I have recently had a number of cases involving insecure loads and lost wheels, both matters of common occurrence causing enormous problems for the haulier.
Prosecution for both insecure loads and dangers parts are founded on Regulation 97 of the Motor Vehicles (Construction and Use) Regulations 1978. This regulation creates an offence where there is a likelihood of danger or nusiance being caused to another road user. Clearly, as it is difficult to argue that there is no danger when a ton of steel or whatever falls on the road or a wheel comes off, the offence is as near Absolute as makes no difference, It is yet another example of the "no win" situation with which every haulier is faced, however careful an operator or drivers may be.
I will deal first with the problem of the insecure load. The reality is that, where something falls off a vehicle, it is extremely difficult to maintain an argument that there is no danger. There are cases, where the load is liquid or fine powder, for example, where the issue is less than clear, and when the decision of the court will inevitably be subjective; even in those cases the defence is as near impossible to maintain as makes no difference.
There are many cases in which the cause of the lost load is the unexpected failure of some part of the security system — the failure of a chain, perhaps. In other cases, it may be the failure of a pallet or stillage which causes the loss. In either event common sense would indicate that the haulier may not be guilty. Unfortunately, a court decided some years ago, in the case of Cornish v Ferrymasters, that a latent defect in the load did not amount to a defence because of the way in which the Regulations had been worded.
Faced with yet another brick wall in the legal system, what can the haulier do?
In the first instance it may be possible to defend a prosecution on the basis that, where the seccurity of the load is in issue (which is the normal choice of the prosecution) it is in fact the packing and adjustment of the load that was at fault. This is a very technical, and therefore very unattractive, defence depending on the distinction between Regulation 97(1) and 97(2); 97(2) creates the offence where the security of the load is in issue, 97(1) creates the offence where the packing or adjustment of the load is the problem. It is not easy; if you are carrying a load of say, cartons of tins of beans, which is the load? Is it the cardboard carton or each individual tin? The carton breaks and the tins fall on the road; is it a failure of the packing, or, because the tins are on the ground, the load?
My view that this is a failure of the packing is not readily accepted by the average magistrates' court. I don't suppose readers are surprised by that.
Secondly, and these observations apply to many cases, you can, and should, seek to persuade the court to give you an Absolute Discharge: To do this it is necessary to be able to "hit" the court with a clean in persuasive explanation of the circumstances. This means that time and effort may well have to be expanded in investigating the incident and that time and effort, is, of course, wasted and terms of the profitability of the company. Nonetheless, against the level of penalties that are now being imposed, there is no doubt that time spent in investigating the background is likely to be well spent.
The other factor is the extent to which the fault lies with the driver in those cases in which the driver is directly responsible for the loading. It may well be a difficult decision to make but, particularly in a case in which the fault clearly lies with the driver, the company should not be afraid to take a separate position before the court. Certainly, in cases where it is the manner of driving that has caused this loss, there should be no hesitation in isolating the driver. At the end of the day, and without disregarding the effect of the fine, it is the 0-licence that must be protected.
Taking that point a little further, I am bound to recommend that each driver is either given some formal instruction in load security by the company, however good the driver's previous experience may be, or, alternatively, and preferably, issued with a company handbook covering the same subject.
One final point on the question of loading. You must have a copy of the Department of Transport's Code of Practice on the Security of Loads, available free from Traffic Area offices. This Handbook seems to have had little publicity and is not widely used in the industry. The fact is that, while some of its views are somewhat idiosyncratic, it is used as an authoritative source by some police forces and other prosecuting bodies.
Regulation 97(1) is the basis for prosecutions for dangerous parts. A wheel that leaves a vehicle is clearly dangerous as are defective brakes. Somewhat surprisingly, however, these prosecutions can produce some opportunities for defence even if those defences rely on technical arguments.
In the first instance it is a requirement that the summons describes accurately the part which is alleged to be defective. A summons alleges a defective wheel when in fact that the defect was in the hub may well be so defective as to avoid a successful prosecution. A complaint about the studs may be wrong if in fact the fault was in the tightening of the nuts. Certainly, where the complaint relates to defective brakes, a defence can be maintained if, notwithstanding, say, a leaking coupling, it can be shown that the brakes were not less than 50 per cent effective.
These defences depend upon a careful investigation of the cause of the incident and, as you will appreciate, they are not attractive defences in the eyes of the courts. Again my view is that the time spent in considering all the circumstances in a case of this sort may well be worthwhile. Do remember that, in those cases in which the driver is immediately and directly concerned, he should be seen at the earliest moment after the offence. Equally, as I mentioned earlier, if the fault lies with the driver, then the company should ensure that they are not prejudiced by their attempts to protect him.
I frequently have the feeling that manufacturers have failed to realise the problems that are caused to the hauliers by failures that seem to be inherent in the design. It is not easy to understand why there should be a market for devices to keep wheel-nuts in position; it seems to be a pretty fundamental requirement for an HGV that its wheels should not come off. The effect of the law is to make it an effectiv necessity that a haulier should consider usin■ any device that appears to be satisfactory operation.
In conclusion, therefore, the message is tha a careful investigation should always be car ried out into any incident involving the load or z complaint of a defective part. There should be adequate instruction given to the drivers ir such a way that it can be demonstrated to the courts, and, finally, the assistance of the manufacturers should be demanded in those cases in which there may be a technical problem or a technical misunde'rstanding by the prosecution by Jonathan Lawton, CM's legal consultant