When is a Driver Not a Driver?
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How the Law Differentiates Between "Driving" and " Work": Responsibilities of Employers By Our Legal Adviser
THE item, "Out for Blood," in the Bird's Eye View feature in The Commercial Motor dated February 22, drew attention to the increased number of prosecutions in respect of drivers' hours and the keeping of records during the year ended September 30, 1955—the last for which records are available. Whilst, no doubt, the present abnormal conditions , produced by rationing have tended to reduce this tendency, that is no reason to suppose that the " tough " policy of Licensing Authorities in regard to these offences will not be resumed when times are more normal. It might therefore be of assistance if some of the legal aspects of the provisions as to drivers' hours were considered.
Those provisions are, of course, contained in Section 19 of the Road Traffic Act, 1930, varied as to certain of the particulars by the Road Traffic Act, 1930 (Variation of Provisions of Section 19) Orders of 1934 and 1937, and it is not proposed to reiterate them in detail. What the Section does is to lay down the maximum periods during which a man may drive without rest, and Subsection (2) is concerned with including as " driving " time spent on certain other activities. It is over the interpretation of when a man is driving or " deemed " to he driving that most difficulties occur.
The Section itself says that "any time spent by a driver on other work in connection with a vehicle or the load carried thereby " is to be reckoned as time spent in driving, but an express exception is laid down to this rule in respect of vehicles being used in the course of agriculture or forestry as long as the vehicle is elsewhere than on a road,
Waiting for Orders
There have been numerous decisions interpreting these rules, and their examples probably leave the position far clearer than attempted imaginary cases. Thus it has been held that time spent by a driver at his employer's depot awaiting orders to drive his vehicle does not count as time spent in driving. This may appear to be a " glimpse of the obvious," but .when the law begins to say that one thing is to be "deemed" to be another totally different thing there is no longer any statement that can rightly be termed obvious!
In the case of Wells v. Sidery (1939), it was held that where a driver began work at 7 a.m. and werit off work at 2.30 p.m. and during the intervening period was engaged on three short periods of actual driving totalling no more than 90 minutes, the rest of the time being spent waiting for others to load or unload the vehicle, he was not " driving " for the whole of that period. The argument was advanced that the word " drive " ought to be construed as meaning " being employed as, and earning his wages as, the driver," but the Divisional Court rejected this view.
There is no doubt whatever that a driver who assists in the loading or unloading operations of his vehicle as part of his duties is acting as a driver during such activities, and this will result in the time spent thus being added to his actual driving time. If a driver voluntarily assists in such work his employers may or may not be guilty of " permitting " an offence if the result is too long a period of driving hours. They cannot be held guilty of " causing " an offence in such circumstances unless the prosecution can show that they somehow induced the driver to act in such a way. Nor can they be guilty of "permitting," unless it be proved that some responsible person—not merely a fellow employee with no authority—permitted it on their behalf.
Where a driver .is engaged the whole of his• time in canvassing orders and delivering during his journey, the time spent will all count towards the maximum permitted hours. The clearest case recorded in the reports of work other than driving which a driver may under— take without its being deemed to constitute driving is Parkinson v. Axon (1951).
Work after Driving The facts in that case were that a driver employed by the Road Haulage Executive, after driving from approximately 2.30 p.m. until 6,30 p.m., was permitted to continue voluntarily at work at the depot in unloading vans and checking the sorting parcels. It was con• tended by the prosecution that this amounted to "work in connection with a vehicle or the load carried thereby" —albeit the vehicles concerned were not his own. The court held, however, that the words of the Act were really aimed at work done by a driver on his vehicle on the road or in delivering or loading or unloading his own vehicle. Accordingly, such extra work as the driver was here doing was merely sorting and portering work and not time to be counted as driving.
It may well be that this decision is illogical, as the aim of the Act is clearly stated to be the avoidance of danger from tiredness in drivers, and it would not seem to matter whether this is Caused by the act of driving 'br by other—perhaps more exhausting—work of another kind. Nevertheless, the decision represents the law as it stands.
Employer's Duty
It should be made clear that an employer's duty is to ensure that rest periods are taken by his drivers from driving or work which counts as driving—it does not run to seeing or supervising how the drivers actually spend their rest periods. Neither is any offence committed by an employer whose driver does not in fact rest during a rest period. The position might well be different, howeVer, if the driver had to spend part of • his enforced rest period in travelling to the place where he is ordered to resume his work.
Lastly, it should be remembered that by Section 31(1) of the Road and Rail Traffic Act, 1933, where a driver is bound by the terms of his employment, even when not driving, to remain on or near his vehicle, or where no reasonable facilities exist for him to rest away from his vehicle, such periods will not count as rest periods.
The penalties involved for breach of the drivers' hours provisions are a fine of up to £20, or up to £50 for a second offence, with the alternative in the latter case of three months' imprisonment. More serious, however, may well be the effect upon the employers as licenceholders, and the impressive figures of convictions for 1955‘do not take account of this added hazard.