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WHO PAYS THE PIPER?

5th May 1994, Page 48
5th May 1994
Page 48
Page 48, 5th May 1994 — WHO PAYS THE PIPER?
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Which of the following most accurately describes the problem?

Where does legal responsibility for rented vehicles lie? It all depends on who is defined as the user, and on this issue the law is more ambiguous than you might think.

Ahaulier facing legal problems if his truck is overloaded or involved in an accident would expect to be held legally responsible. But who is in the firing line lithe vehicle is rented? The answer depends on who is legally defined as the "user"—but a rented vehicle can be "used" by several different parties simultaneously.

The owner is a user because it earns him rental fees. The haulier is a user because he profits from the use of the vehicle. The haulier's customer is a user because his goods are being transported. And the driver is a user for the obvious reason that he is in control of the vehicle. A sub-contractors can also enter the picture because he is paid by the haulier.

In an attempt to mop up this ambiguity the term 'tier" was given a stricter legal definition under the statutory provisions of the Road Traffic Act so that it applies only to the driver and his employer. But even this is not as straightforward as it seems; in complex cases you would be lucky to get two lawyers to agree exactly who is responsible.

"By pulling a trailer I must be using it," says transport lawyer Jonathan Lawton. "If there is a defect the question is who is responsible for it? The law says the "user" is responsible, but there is no clear definition of user." According to Lawton, potentially grey areas exist where the tractor is owned by one party while the trailer is rented from another.

He points to a case where a major vehicle rental company successfully avoided prosecution for renting out a trailer with a defective wheel which eventually fell off: "The wording of the summons covered the trailer and the tractor together, and the court decided that the the owner of the tractor was the "user" because the tractor was pulling the trailer."

Another problem with the term "user" is that it imparts absolute liability, which means ignorance of the event is not accepted as a defence. Section 1219 of Wilkinsons Traffic Law states: "An employer may thus find himself charged with an offence of which he himself was quite ignorant and which may have been committed hundreds of miles from his office."

This means a haulage company can face prosecution even if it has no directional and operational control of its vehicles, as would be the case if a sub-contractor took on a job using the haulier's vehicle (rented or otherwise) and accepted overall control for organising the delivery. Self-employed drivers can also be prosecuted even when the haulier is directing the delivery, because they are both employers and drivers. But in the 1992 case of haulier Hallett Silberman vs Cheshire County Council the courts ruled against this definition. The judgement was: "A road haulage company could properly be regarded as the "user" of an unlawful abnormal indivisible load even though the vehicle was being driven by a self-employed driver."

The court ruled that Hallett Silberman was the "user" because it had exercised a high degree of control. Hallett Silberman had argued that the sub-contractor was both employer and employee, and therefore the "user" according to the law. Lawton explains; "Because it was an abnormal load subject to regulations, Hallett Silberman had total control over how the trailer was being used and the court said the haulier could not avoid its responsibility as a "user"."

Some lawyers argue the term "user" has been extended by this ruling. Christopher Charlesworth of law firm Ford & Warren says: "The person who is directing the operation of the vehicle is now arguably the "user", and it allows the courts to look more closely at where the responsibility actually lies."

He adds that while the ruling has not yet been tested in the High Court, it has been used in defence cases where the "user" in the traditional sense (the haulier and his employee) has not had control of the vehicle. While the whole area of liability remains unclear, most lawyers agree that the haulier is the "user" if he rents the vehicle. The rental company is rarely seen as the "user".

But James Backhouse of legal firm JA Backhouse & Sons says: "The rental company can be liable depending on the facts of the case, such as who is in control of the trailer and who is responsible for the maintenance." Even in these cases, the rental company is rarely seen as the "user", but it can be prosecuted for "permitting" the use.

However, since "permitting" is not an absolute offence, the prosecution needs to prove "mens rea" (a guilty mind). This means that in a case where, for example, brakes are faulty and the rental company is responsible for the maintenance, the prosecution has to prove that the rental company was negligent and should have known the brakes were defective. Even then the haulier renting the vehicle would not necessarily be cleared of responsibility, and the case could get complicated. Charlesworth says: "If the rental company is responsible for servicing the vehicle, say every four weeks, the person hiring the vehicle would still be responsible for carrying out daily checks in between times. Which means both rental company and haulier could be charged with "permitting"."

A vehicle hirer cannot avoid the responsibilities of a "user", even if the rental company is responsible for the maintenance. Despite the existence of legal definitions of "user", the Hallett Silberman case shows there are no clear legal solutions. As one lawyer puts it "We wouldn't have a job if the law was easy to understand."

CI by Giselle Jones


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