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When the Boss Is Not Guilty

23rd October 1959
Page 62
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Page 62, 23rd October 1959 — When the Boss Is Not Guilty
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Which of the following most accurately describes the problem?

There Should be Practical Limits to Operators' Responsibility for Ensuring That Drivers' Hours are Not Exceeded

pROBLEMS arising from the regulations governing drivers' hours as set out in Section 19 of the Road Traffic Act, 1930, continue to receive increasing attention. Many of the details concerning the types of vehicle to which the regulations apply, the hours of work permitted and the period of rest required, together with some allied queries, were discussed in this series on April 3.

Although always a possible source of "controversy, responsibility for any contravention of this section has recently caused keen argument. After listing the types of vehicle to which the Act refers, Section 19 states that it is unlawful for " any person to drive or cause or permit any person employed by him or subject to his orders to drive S' more than the period then specified. Whilst the driver, whether an employee or owner-driver, is clearly involved if a breach of the regulations occurs, the responsibility of the employer is less specifically defined.

If an employee is detailed to carry out a term of duty which must contravene either the restrictions on hours or period of rest, the employer is clearly to blame. In other circumstances, however, the extent to which he can be said to have permitted, as distinct frorn.caused, a driver to break the law during the course of his duties, depends on the particular details in each case and for this reason can be highly controversial.

Some long-distance haulage inevitably gives rise to difficult situations as to the element of responsibility, if any, which can be fairly attributed to the employer when a breach of the regulations has occurred. Unlike scheduled passenger or trunkhaulage duties, which necessitate drivers operating to a strict timetable, there is a substantial volume of traffic moved daily on tramp services. .

Having received the initial instruction from their employers as to the time and place of the first collection and delivery, drivers on tramp work are normally entrusted to carry it out as expeditiously as loading and other local conditions permit. To some extent, such arrangements contribute to the fleiibility for which road .haulage is noted. It would be wrong, however, to claim that this necessarily implies lack of control on the part of the employer, although it obviously means that the driver is entrusted with more responsibility than would normally apply in many other spheres.

Element of Freedom

At the same time, it must be admitted that the opportunity is undoubtedly available for abuse of this element of freedom from direct control by the wrong type of employee. It is significant how frequently, in well-established road transport businesses, managements stress the importance of loyal stall when handling long-distance traffic.

Most convictions of employers or drivers for breaches of regulations usually relate either to the keeping of records or to exceeding the maximum hours during which drivers may remain continuously on duty. It is less usual to have a case concerning failure to observe the 10 hours of consecutive rest in any 24-hour period as required by the Act. The report of a recent conviction on this charge, together with a subsequent successful appeal, provides a good example of the difficulties under which an employer can be placed, and the length to which he must apparently go, before it is admitted that he has done everything possible to avoid a breach of the regulations.

The case concerned two drivers of a Yorkshire haulage contractor who left their depot at Selby at 3.40 p.m. on a Thursday last December and drove in two vehicles to Gretna Bridge. The object of the journey was to locate a third vehicle which had broken down there, to tranship the load on to one of the two lorries and then eventually to tow the disabled vehicle back to Selby. In subsequent evidence it was reported that from aroupd 9.30 p.m. until midnight, the three drivers worked on transhipping the load at Gretna Bridge, after which the two drivers who had set out from Selby the same day returned to a café at Scotch Corner, where arrangements had been made for them to spend the night.

By the time they had returned to Scotch Corner and attended to their vehicles it was l a.m. on Friday, at which time they retired to bed. Both drivers stated that they had left Scotch Corner at 9.30 a.m. to return to Selby, thus having had only RI hours' consecutive rest. One of the drivers stated they had intended to start work at II a.m., but that both had to get up earlier, as the owner of the café wanted them out by 9 a.m.

Subsequently, one of the drivers was dismissed and immediately reported the matter to the police. The haulage contractor was convicted by the Selby magistrates for permitting a driver to drive so that he did not have at least 10 hours' consecutive rest in a period of 24 hours. The employer appealed.

No Specific Instructions

It was then given in evidence that no specific instructions had been issued to the drivers as to when they were expected back at Selby. In view of the time of the year, and possible weather conditions, together with the difficulties associated with transhipping the load at Gretna Bridge, the two drivers were given the discretion to do the job as soon as was reasonably possible and to return to Selby when they could.

Evidence was also given on behalf of the haulage contractor by thc proprietor of-the café at Scotch Corner. He stated that drivers spending the night at his café were permitted to stay in bed up to 10.30 a.m. if they wished, and even on rising there was no obligation upon them to have a meal immediately and leave the café. There was nothing to prevent any driver staying in the café all day.

The employer submitted that as both drivers were of some years' experience and fully conversant with the regulations covering driving hours and rest periods, there was nothing to prevent them from taking the necessary 10 consecutive hours' rest, and he considered that he had done all he possibly could to permit them to do so.

Moreover, the operator submitted that he had not issued any instruction preventing the drivers taking the necessary rest period, and as it was impossible directly to control.their actions when they were away from their depot, the employer could not be held responsible for their wilful default. This 'submission was accepted by the Appeal Committee and the conviction was quashed.

Under paragraph 4 of Section 19, if the excessive hours are in fact worked, the person concerned, whilst still being guilty of the offence, would not be convicted if he could prove to the court that the contravention was due to unavoidable delay in completion of a journey arising out of circumstances which could not reasonably have been foreseen. To some extent There is a tacit admission that there can be exceptional circumstances over which no one can be reasonably expected to have complete control. This applies even where both employer and driver are co-operating to complete whatever job is on hand within the specified time limit.

Where an employer has taken all reasonable precautions to avoid any contravention of Section 19, it seems unjust that he should still be held responsible for any action of his driver, even though the driver may be acting outside his instructions.

The proviso to paragraph 4, however, is limited in its application and the words "could not reasonably have been foreseen " cannot be claimed to cover any form of delay. However

rating long waiting times may be before loading or unloadfor example, they are frequent occurrences in many ators'. day-to-day experience, so that only in the most ptional cases could such delays he termed unforeseen.

similar circumstance arises in connection with weather itions with which all users have to contend. lf, for example, r or fog substantially delays a driver throughout his journey, 1st it becomes obvious that he is unlikely to complete it [n the statutory period, then it would be his duty to try to accommodation en route. If, on the other hand. such itions applied only towards the end of the journey, and no rnmodation was available to him, it would seem reasonable )im to continue beyond the permitted hours until he could a bed.

nilarly, it would not be sufficient excuse for exceeding the tory hours merely to say that one had a breakdown. As delays caused by bad road conditions, some effort would have to be made after a breakdown to readjust the duty for the day so that it did not contravene the regulations. If, however. after all reasonable steps had been taken, it was not possible to arrange for the driver to stay the night in the locality, he would obviously have no alternative but to proceed, after repairs, to the nearest point where accommodation could be had.

In all these examples there is an obligation on both the employer and the driver to do eVerything possible to complete the journey within the statutory period, even in the event of some unforeseen occurrence. Having taken all such steps, they would have good grounds for claiming exemption from conviction under paragraph 4 of Section 19. That being so, it would seem both just and logical that the employer, having done his best to avoid any breach of the regulations, should not be liable to conviction for any unauthorized act of his driver. The successful appeal referred to would seem to support this contention. S.B.

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Organisations: Appeal Committee

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