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Some Everyday Legal Problems•
Page 83
Page 84
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Fr 1-115 paper is by Mr. Ronald McDonald, a partner in joynson-Hicks and Co., advisory solicitors to the ,
C.M.I.T.A, It deals with many legal points with which operators are constantly being faced, and includes details of certain cases.
The first concerns an application by Mr. Smart for an additional A vehicle. It was opposed by two railways, which claimed that they could carry more traffic. On appeal. it was argued that if an objector proves that suitable transport facilities exist in the district which the applicant intentia to serve and that these are adequate, the objector is entitled in law to have the application dismissed, whether it he for variation for additional vehicles, for discretionary tonnage, and whether the customers for whom the additional tonnage is required are old-esta.blished customers or not. It was suggested that this also applied to renewals. Later, the railways abandoned the latter argument.
The appeal was dismissed, the Tribunal stating that, generally speaking, it would not be in the public interest for a Licensing Authority to authorize the use of additional vehicles if, on the facts of the case, it was decided that suitable transport facilities in the district existed and were in excess of requirements.
The words " generally speaking " were used advisedly, as the Tribunal was not prepared to say that a change in condition might not disclose some case where the Authority , could exercise discretion to grant an application for additional tonnage, despite proof of suitable excess facilities.
It was decided that the railways had not proved that the alternative facilities were suitable, and it added in the decision that the word " suitable " means more than adequate, and that the word " requirements " in the Act does not mean the requirements of the objector or applicant.
A Delayed Death for Road Transport?
To have upheld the submission of the railways as put in the first place would have meant that the provisions of the Act as to claimed tonnage were merely intended as a delayed death to the road-haulage industry, apart from short-distance transport. To apply the principle to reeewal applications would be tantamount to the suggestion that the consequent unemployment of drivers arid vehicles would be in the public interest.
The question of carrying rubbish on C-licensed vehicles is one that has been causing discussion and allows unfair competition. Many .sand and ballast and builders' merchants carry only for hire and reward, plant and building materials from one site to another. The majority also carries "muck " (material excavated upon sites), If the carriage.be authorized under the conditions of a limited licence, then no question arise's, but unfair competition occurs in this way. The B licensee pays his drivers Con
ciliation Board wages; these do not apply to C licences.
The C licensee often carries excavated material on his vehicles-, his argOrtient being that it is not foe hire -or reward, as it is his property although he may be paid for removing it. He takes it to tips held under lease, or deposits it upon payment; not 'only is he able to carry it at a low price, hut is -enabled to sell his own goods cheaper. It seems clear that, with one exception, this
transport is illegal.
As to the contention that rubbish becomes the haulier's property, it may be so in the following instance. Section 2 (4) provides that a C licence authorizes the carriage of goods for any trade or business carried on. If a builder's merchant disposes of rubbish'iii his sand pits to restore the level, then, possibly, he might be entitled to carry it under his C licence, Drivers' Records and Sneed.
It has been decided by High Court that driver's records are evidence against the employer. By the Road Traffic Act, 1930, the production of a time-table issued by an employer which shows that it is impossible to complete a section of the journey within the speed limit is, prima facie, evidenceeof encouragement to'commit an offence. It seems that the records will be used to a far wider extent than was the intention of Parliament.
Many employers have thought it sufficient to give employees notices as to what can or cannot be done. This is advisable, especially in writing, but it does not end here. It is the employer's duty to see that the drivers comply. Therefore, a check must be made when the sheets are handed in.
If this shows a breach of regulations, then it is useless to ignore it in the hope that it will not recur. Traffic examiners will not reciprocate this treatment in their 'dealings with employers. If a driver has been so warned it is advisable to keep a record card of any disciplinary action, and the erring driver made to sign this. If a man ignores warnings, suspension for a few days may assist. Defence pleas of delay alone are insufficient. It must be shown that they could not reasonably have been foreseen. In case of delay at docks, etc., drivers should record the arrival and departure at places where they wait.
Employers can better defend themselves if they issue written instructions as to the law, placing copies in drivers' cabs, printing extracts from them on sheets and seeing that the sheets are collected frequently and carefully examined. Above all, care must be taken that if a driver works for more than the maximum hours he should not be paid for the exceSs; to do so amounts practically to an admission of responsibility.
Many employers issue records in book form. This is not correct, as records must be handed to the employer c33 within seven days and retained. If the book be not completed to time the employer cannot hope to receive the records within the limit, and they will not be available for inspection. Records for seven consecutive days are legal, but do not permit checking details until, perhaps, a week after a breach has occurred. The daily sheet is best.
One reason for preventing repetition of offences is that the frequency is a material matter in a Licensing Authority inquiry.
The payment of a fine for record offences may not end the matter. Licensing Authorities can revoke or suspend licences if satisfied that breaches are frequent, wilful, or likely to cause danger. In restrictions on B licences, warn the customer, as well as the driver, by letter, and retain a copy.
Insurance of Employees, Vehicles and Loads.
It is not necessary to insure in respect of death or bodily injury an employee, provided that the question arises out of his employment, he is • protected by the Workmen's Compensation Act, nor is it necessary to cover a relative or friend riding in the insured's vehicle, unless payment be accepted. Persons carried by reason of or in pursuance of a contract of employment must be covered.
The proposal form should be accurately completed. If some fact known to the proposer might affect the mind of the company in deciding whether or not to accept the risk, the proposer must disclose it. If the answers be incorrect, no claim could successfully be made under the policy. One of the pitfalls is the use made of the vehicle. It may be covered for coal, but not for timber. This may not invalidate the policy, but might disentitle the insured in respect of a claim arising out of the use of the vehicle for the purpose not covered.
The owner must be careful when loaning a vehicle, whether or not he receives payment. It is curious that if a person be a common carrier, his responsibility for a bale of goods is greater than for a human being. It is open, however, to make a special contract with the consignee, limiting liability, provided the conditions be brought to the knowledge of the consignor.
Liability in Respect of Hired Servants.
There should not be difficulty in deciding whose servant an employee is, but with hired servants there is a problem. The question is: When is a servant not a servant, end when is a person vvho is not a servant, a servant? The distinction is drawn between a general and a particular servant. The former is usually employed by his master, but hired out on occasions to do work for a third party, the servant then, although remaining the general servant of his employer, becomes the particular servant of the third party. In cases of damage, it is generally the third party Who pays, but it is necessary that the master should have disposed for the time being of the man's services, so that while working for the third party he is not under the control of his usual employer.