1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152 
Transport lawyers have to be imaginative when facing a sceptical
Page 39
If you've noticed an error in this article please click here to report it so we can fix it.
magistrates bench. Producing a brake drum in court, or explaining what a triaxle trailer is, might just help tip the scales in the operator's favour. Patric CunnanP travelled west to meet three experienced defenders and uncovered some tips on how hauliers can stay out of court.
Gathered in the airy Exeter offices of transport lawyers Over, Taylor, Biggs are three of the company's principals and Commercial Motor. We are here to talk law and to find out what it is like defending the interests if hauliers from the wrong side of a rnagisrate's bench. Certainly, there are tales to tell.
One of the founders of the io-year-old firm, Christopher Over, recalls travelling to Wales to efend an operator: "The magistrate thanked us for coming all the way from England then proceeded to conduct the rest of the case in elsh," he recalls, adding that the practice of law in rural areas is very different from the teeming metropolis: "At Haverstock Magistrates Court we have to retire because there is nowhere for the magistrates to go!"
Defence claims
Over is involved in a great deal of employment work, including defence claims for unfair or constructive dismissal. He is joined by partner Barry Bayley, who specialises in criminal law, road traffic and personal injury cases (especially PSV) and assistant solicitor Paul Atkinson, who specialises in road haulage, general negligence and personal injury claims.
Public Inquiries and hearings into vehicle defects and insecure loads are often routine, but some cases can be traumatic for all concerned. "I am representing a driver whose truck crossed lanes on the motorway, killing two people," says Atkinson. The driver was fined and received six penalty points but escaped a ban. Atkinson has just successfully represented a driver charged with speeding who left court without any points added to his licence. Had the case gone the other way he would have lost his licence.
He has also successfully defended a company accused of poor maintenance standards which claimed it was unaware that a problem existed. "Fortunately the magistrate was a garage owner himself which was very welcome," says Atkinson. "Clients are increasingly complaining about poor standards of contract maintenance although, even if contracted out, maintenance remains their responsibility."
Over adds that pressure is being exerted to toughen maintenance regulations: "The Examiners and the Commissioners are saying that operators must introduce a maintenance auditing system because it's their responsibility. If the operator does not have the expertise :o audit maintenance then he must bring in m expert to do so. But that's just ludicrous. You don't check the work when your car is ;erviced because you expect the garage to have :arried out a competent job."
Bayley specialises in representing coach operators and is involved with a local case of some magnitude: "A couple of large coach firms have had their offices raided by the VI and 30 drivers have been prosecuted for hundreds of offences." Bayley believes the digital (smart-card) tachograph will pose special difficulties for operators: "At present if a driver goes into the yard and does a couple of hours of non-driving duties, such as cleaning, he can record that manually on the tachograph. That will not be possible with the digital version."
Generally all three agree that truck drivers are professionals who are less likely to be involved in an accident than a motorist. Atkinson says that in his io years with the firm he has only been involved with one drink-driving case involving a truck driver. He finds the most frequent cases involve vehicle defects such as problems with brakes, suspensions or wheelnuts.
One of Over's most challenging cases involved defending the Cornish operator whose digger was responsible for the deaths of five people after an unsecured arm swung out into the path of approaching cars. The operator, and its parent company, were fined a total of 1300,00u0 which was appealed, but unsuccessfully. "In this case we were saved from a corporate manslaughter charge by the skin of our teeth," he adds. "The driver had been working for 16 hours and driving for 12. He denied he would have loaded the vehicle differently if he had not been so tired."
Right case
Over thinks it is only a matter of time before a road transport company faces a charge of corporate manslaughter. "The police are just waiting for the right case—the public are fed up with road and rail disasters." The Cornish case was further complicated by the fact that the operating company (the one running the vehicle) had been acquired by another company with good safety systems in place, but both firms were charged. Over unsuccessfully argued that this was unfair.
Cases which include fatalities are always difficult to defend. Bayley has recently defended a van driver charged with reckless driving which resulted in the death of a woman: "You have to get the magistrate to distinguish between th act itself and its consequences because th family is sitting there asking: 'Is my mottle only worth three points?'."
Because cases are often of a technic nature it is important that the lawyers take th trouble to brief the magistrates as thoroughl as they can. "It will help your case to explai: exactly what a triaxle trailer is, for example, says Atkinson. "I recently brought a brak drum into Cullompton Magistrates Cow which left oil on the carpet."
"Wheeling tyres into court is always a pope lar move," Over laughs.
Of course preventing hauliers getting int. trouble in the first place is a vital part of lega work. Atkinson explains: "If a client contact me with results of an inspection whicl revealed defects we will go through the main tenance records to check for gaps and we alst analyse any gaps the IC might look for, sucl as defect reporting and driver instruction."
Tax discs
Over adds that the firm offers its clients regu lar legal updates on issues which could caust problems, such as employment law and tai discs: "You used to be able to say that you] vehicle had been off the road which exemptec you from the tax. The law changed so thaproving your truck was off the road was nc defence for back duty. We have defended thre€ or four hauliers caught by this."
Over warns that it is important that transport firms award their drivers proper contracts, although getting this message through is an uphill struggle. "If the operator makes it an issue of misconduct not te check wheelnuts daily then the driver can be disciplined. TCs like to see those systems in place—it helps when you are defending a company at a Public Inquiry."
Atkinson warns that enforcement is getting tougher, with more drivers charged for offences that once might have resulted in a conditional discharge. The transport lawyer has to be prepared to dole out tea and sympathy as well as advice when called to a police station. As he says: "For the driver who is being held you are often the first friendly face they have seen since they were arrested."