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Duty of Care

Unsure of your road-related 'Duty of Care' responsibilities?, don’t know where to start on your Occupational Road Risk assessment?, need advice on preparing your Work Related Road Safety policy? - Auto Risk Solutions will be happy to help.

To date there have been relatively few examples of successful prosecution of employers for breaches of health and safety law on the road. However, in the light of the Health and Safety Executive’s (HSE) guidance and new police procedures for investigating road deaths, this may change. Where an employee has been involved in a road incident because they were: unfit; fatigued from working long hours; speeding in order to meet a tight schedule; driving a defective vehicle; or not properly trained, the HSE and the police will investigate jointly and, where appropriate, prosecute under health and safety law. Some prosecutions on these grounds have already been taken. Prosecutions can be brought under a variety of regulations:

• Corporate Manslaughter and Corporate Homicide Act 2007

• The Road Traffic Act 2006

• Construction and Use Regulations

• Health and Safety at Work Act

• Management of Health and Safety at Work Regs

• Provision and Use of Work Equipment Regs

• Regulations to the new Employment Act

• Working Time Directive for the Road Transport Sector

• 4th EU Motor Insurance Directive

What is ‘Duty of Care’?

• a duty to do everything reasonably practicable to protect others from harm,

• a duty of care is the obligation that a sensible person would have in the circumstances when acting towards others and the public,

• if the actions of a person are not made with care, attention, caution, and prudence, their actions are considered negligent; consequently, the resulting damages may be claimed as negligence in a legal action,

• in law, a duty of care is the legal requirement that a person exercise a reasonable standard of care to prevent injury of others,

• privities of contract are not required for a duty of care to exist.

Extracts from The Health and Safety at Work Act 1974

• It shall be the duty of every employer to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all his employees,

• it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees,

• It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures,

• it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees,

• It shall be the duty of every employee while at work to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.

Work Related Road Safety concerns the safety of everyone who drives as part of their work immaterial of the car scheme in place or the contractual agreement between the employer and employee.

There is a legal and moral 'Duty of Care' issue that exists between the employer, staff, employees, contracted workers and anyone who is affected by their on-road activity

'Tom’s Top Ten Tips'

1. Put things in perspective
   What really needs to be done and who will do it
2. Risk Assessment
   Look at the on-road operation and identify the risks associated with it
3. Road Safety Policy
   Having identified the risks put a policy in place to remove or minimise those risks
4. How to get it all to work
   Communicate the policy to everyone in the organisation
5. How to keep it working
   Test and review the policy regularly
6. What could happen if it doesn’t work?
   Consider the legal and financial consequences and ensure board members are aware of them
7. What to do when things go wrong
   Investigate, categorise and record incidents/prepare a disaster plan,
8. How to get things right again
   Identify causes and trends, and take appropriate remedial action,
9. Do I need any help?
   Are the necessary resources within the organisation or will it require outsourcing,
10. Review and revise
    Re-assess the processes regularly and make sure they still fit the operation.

Extracts from The National Road Death Investigation Manual:

“In any investigation of road death the SIO (Senior Investigating Officer) should consider where any alleged liability or culpability for the death may lie. There will be occasions when it is apparent working regimes, illegal or dangerous practices or negligence have contributed to the death. It will be during such investigations that a SIO may consider liability in respect of corporate bodies and/or personal liabilities of officers within those bodies.”

“The investigation of corporate liability will not be limited to the investigations of commercial concerns but will include any organisation where there exists an employer/employee relationship and where a ‘duty of care’ is owed by:
– the employer to their employee
– the employee to their colleagues
– the employer to anyone affected by their work
– the employee to anyone affected by their work (including other employees.)”

Extracts from The Corporate Manslaughter Act 2007

The offence is committed where an organisation owes a duty to take reasonable care for a person’s safety, but the way in which its activities have been managed or organised amounts to a gross breach of that duty and causes death.

Section 1(1). Any such ‘organisation’ is guilty of an offence if the way in which its activities are managed or organised – a) causes a person’s death; and b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

Section 1(3). However, an organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach,

Section 1 (4)(b). A breach of duty is gross if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances.

Section 1(4)(c). Senior Management means the persons who play significant roles in – (i)the making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or (ii) the actual managing or organising of the whole or a substantial part of those activities.

Meaning of “relevant duty of care”. a) a duty owed to employees or other persons working for the organisation; b) a duty owed in connection with the supply of goods/services, the carrying on of construction or maintenance operations or the carrying on of any activity on a commercial basis or the use/keeping of any plant or vehicle; c) a duty owed as occupier of premises; d) a duty owed to a person who is someone for whose safety the organisation is responsible.

Individual board members’ legal liability for health and safety failures

This can apply to your Occupational Road Risk and Work Related Road Safety Policy

If a health and safety offence is committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the organisation, then that person (as well as the organisation) can be prosecuted under section 37 of the Health and Safety at Work etc Act 1974.

Recent case law has confirmed that directors cannot avoid a charge of neglect under section 37 by arranging their organisation’s business so as to leave them ignorant of circumstances which would trigger their obligation to address health and safety breaches.

Those found guilty are liable for fines and, in some cases, imprisonment. In addition, the Company Directors Disqualification Act 1986, section 2(1), empowers the court to disqualify an individual convicted of an offence in connection with the management of a company. This includes health and safety offences.

This power is exercised at the discretion of the court; it requires no additional investigation or evidence.

Individual directors are also potentially liable for other related offences, such as the common law offence of gross negligence manslaughter. Under the common law, gross negligence manslaughter is proved when individual officers of a company (directors or business owners) by their own grossly negligent behaviour cause death. This offence is punishable by a maximum of life imprisonment.

Note: equivalent legislation exists in Northern Ireland, i.e. article 34A of the Health and Safety at Work (Northern Ireland) Order 1978 and article 3(1) of the Company Directors Disqualification (Northern Ireland) Order 2002.

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