Jim Duckworth, editor of Road Transport Law and head of
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Transport Law Services, Woking, Surrey, helps solve your legal problems in this regular column. Wrtte to Commercial Motor, Room 14203, Quadrant House, The Quadrant, Sutton, Surrey SM2 5AS giving your name and telephone number. Duckworth's answers are an interpretation of the law and should not be seen as definitive.
BREAK TIME
• I have left the Army and got ajob driving a 7.5-tonne truck for a distribution company. Among the other drivers there are different views on the 45-minute break and four-and-a-half hours' driving.
Can you tell me what the law is on this break?
• The requirement for a driver to take a 45-minute break after four and a half hours' driving applies to a driver who is subject to the EC drivers' hours law. From what you say about the vehicle being used for distribution, it appears you will not be exempt from the EC law.
Article? of EC Regulation 3820/85 states that after four and a half hours' driving a driver must take a break of at least 45 minutes unless he is then beginning a daily rest period. The 45-minute break can be replaced by breaks of at least 15 minutes each, spread out over the driving period or immediately after it, so that the requirement is complied with.
A problem involving the correct interpretation of this requirement was referred to the European Court because two different interpretations had been followed in the UK. The case was that of DPP vs Charlton 09941 RTR 133.
The court did not follow either of the UK interpretations, but ruled that "where a driver has taken 45 minutes' break, either as a single break or as several breaks of at least 15 minutes, during or at the end of a four and a half hour driving period, the calculation of [driving time] should begin afresh, without taking into account the driving time and breaks previously completed by the driver".
This means that if you drive for four and a half hours you must have 45 minutes' break— in one stretch or in periods of not less than 15 minutes—to go with it, unless the end of the driving marks the start of your daily rest. Once they have been taken, the slate is wiped clean and you start counting hours and break times afresh.
SHED LOAD
II I was just driving off a demolition site when the tailboard of my truck came open and a load of rubble fell on to the road. The securing catches had
broken under the strain.
The police turned up and I have now received a summons for using the vehicle In a dangerous condition under Regulation 100 of the Construction & Use Regulations.
There seems to be no way out of the charge, but will my licence be endorsed for something I could not have known would happen?
▪ There should be no endorsement on your licence because you have been charged under Regulation 100 of the Construction & Use Regulations; consequently, the court has no power to endorse your licence.
If you had been charged with the same offence under Section 40A of the Road Traffic Act 1988 an endorsement could have been made. Until the Road Traffic Act 1991, the offence of dangerous condition was dealt with solely in Regulation 100(2). It was enforced by what was then Section 42 of the Road Traffic Act 1988.
One of the changes in the 1991 Act was to insert a new section,40A, into the Road Traffic Act 1988, to deal with vehicles which caused danger because of their condition or load. This section came into force on 1 July1992 and carries its own penalty.
The Department of Transport planned to revoke Regulation 100(1) because of its replacement by Section 40A, but it has taken no action. Consequently, Regulation 100 is still alive, and is now enforced by a new Section 42 which does not carry licence endorsement.
The result is that a person using a vehicle in a dangerous condition can be prosecuted under: • Section 40A, for which the maximum penalty (with a goods vehicle) is a fine of £5,000, and licence endorsement is obligatory: or • Regulation 100(1) and Section 42, for which the maximum penalty (with a goods vehicle) is a £2,500 fine. There is no licence endorsement.
Even if you had been charged under Section 40A it is possible that your licence would not be endorsed. Although the conviction of a person under that section involves discretionary disqualification and obligatory licence endorsement, Section 48 of the Road Traffic Offenders Act 1988 says a court must not order
these if a person "proves that he did not know, and had no reasonable cause to suspect, that the use of the vehicle involved a danger of injury to any person".
It seems probable that you would not have known or suspected that the catches were about to break.
CAB PHONES
• I have a phone in the cab of my truck. Some say it is Illegal to drive and hold the handset at the same time. What do you say?
• There is no specific law banning the driver of a motor vehicle from holding or using a car phone while he is driving. But depending on the circumstances of a case—particularly if an accident occurs because a driver is not paying attention or controlling his vehicle property —a charge of careless driving or driving without reasonable consideration could be brought. In a really bad case a dangerous driving charge could result.
Nowadays the Department of Transport and police actively discourage drivers from using car phones while driving. It is considered that when trying to find numbers on a keypad or engaging in a telephone conversation a driver's attention is being unnecessarily diverted from the job. And having a hand off the steering wheel while engaging in this activity could affect the driver's ability to control the vehicle in an emergency, such as traffic in front stopping suddenly.
In relation to the use of mobile phones, the Highway Code states: "You must exercise proper control of your vehicle at all times. Never use a hand-held mobile phone or microphone when driving. Using hands-free equipment is also likely to distract your attention from the road. It is far safer not to use any telephone when you are driving—find a safe place to stop first."
Although a failure to follow the Highway Code is not in itself an offence, Section 38 of the Road Traffic Act 1988 provides that in either civil or criminal proceedings such a failure may be relied on by any party to the proceedings as tending to establish or negate any liability.
Consider this: would you expect to pass a driving test if you had a conversation on a mobile phone during it?