THE LOST-WHEEL SYNDROME
Page 29
If you've noticed an error in this article please click here to report it so we can fix it.
PROSECUTIONS
• The operator, driver or fitter can be liable to prosecution following the discovery of loose or missing wheelnuts, whether or not the wheel becomes detached.
These prosecutions are normally dealt with in the magistrates court. But in serious cases, usually those involving serious injury or death, cases can be heard by a crown court.
The prosecutions can be brought under Regulation 100 of the Road Vehicle (Construction & Use) Regulations; Section 42 of the Road Traffic Act; and Section 40A of the Road Traffic Act 1988. These are generally referred to as the "dangerous condition offences".
The offences differ in that the penalty for breach of Regulation 100 carries a maximum fine of £2,500 but no licence endorsement, while an offence under Section 40A does lead to an endorsement of the driver's licence with three penalty points and a maximum fine of £5,000 with discretionary disqualification.
The offences are such that the prosecution will usually be against the driver or operator as "user". The user is the driver as he actually drives the vehicle. The operator is the user if the driver is his employee, acting in the course of his employer's business at the time of the offence.
The prosecution does not have to prove that the driver or operator knew of the defect, or that the driver or operator had been negligent; simply that the defect was present and the vehicle's use on the road was dangerous. Loose wheelnuts obviously fall into this category.
More often than not if the prosecution can prove those elements of the offence a guilty plea will have to be entered.
However, if the operator can establish that he has not been negligent, and is in effect morally guiltless, then that lack of culpability on his part could substantially affect the outcome of any criminal proceedings or action under the 0-licensing legislation.
The onus is on the operator to prove that he has an effective maintenance system, supported by documentary evidence. If the operator has followed recommended procedures for the fitting, re-fitting and removal of wheels, with re-checking procedures including daily checks by the driver, then the courts would probably award an absolute discharge for the operator and for the driver. More importantly, this should avoid endorsement of the driver's licence—and indeed the operator's driving licence if the operator is an individual or a partnership.
If the courts are not appraised of the "lost-wheel syndrome", common sense dictates that they will apply their own knowledge of wheel fixings. This will invariably relate to non-commercial vehicles such as cars, and although car drivers rarely check wheelnuts between services, those wheel fixings rarely come loose. It is understandable in such cases that the court will consider maintenance as being the culprit and will accordingly impose a hefty fine. The Magistrates Association's recommended penalty in such cases is at least £1,200.