Failing to ensure that driver's make a proper note on the back of tachograph charts for unexpected events arising in the course of a journey, or even 'off road' driving, can prove costly...

A case from last week should act as a warning to all operators on the importance of ensuring that drivers write appropriate notes on the back of tachograph charts.

When should my drivers do a DAILY DEFECT CHECK on heavy good vehicles ?
The formal phrase used to describe this element of defect detection is a "first use check". On EACH DAY of HGV operation the vehicle MUST NOT enter the public highway until it has first had key safety elements checked by the driver i.e.; lights, tyres wheel nuts, battery security, steering...

When operators apply for an operator licence they sign up for what used to be called 'the 7 pomises' but which on the new re-vamped applications forms might be called the 10 Commandments! - in short undertakings are signed for including those to make "proper arrangements" so that vehicles and trailers, including hired ones, are kept in a fit and serviceable condition and that drivers report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects are recorded in writing; moreover, records have to be kept for 15 months of all driver reports which record defects, all safety inspections, routine maintenance and repairs to vehicles and that these are made available on request.

The reality is that there is no formal requirement that an operator must keep records of their nil defect reporting system and some operators choose only to record defects when they appear, consigning these to writing - they can adopt this 'slimline' version without necessarily breaching any undertaking but they remain horribly exposed in the event of any maintenance-related Magistrates' Court proceedings or in public inquiries.

In all the more successful Magistrates' Court cases I have dealt with drivers who have been using a nil defect reporting system have fared best - they can state in Court that they proactively carry out nil defect reporting and can prove this through production of their defect-free defect report. The prosecution can find it hard to gainsay the nil defect sheet. Whilst there is no statutory or other mandatory obligation to adopt a nil defect reporting system it is better and gives a veil of protection. Without such a system a prosecutor can always say to an operator/driver "you say you did the checks and there were no defects but you have no proof of this" .
A nil defect reporting system comes into its own in situations such as loose wheel nut or wheel loss cases: in a case I am currently dealing with an immediate prohibition was imposed by VOSA for a loose wheel nut where the driver had carried out a nil defect report at the start of his working day and religiously every day previously. The driver could not possibly have known that the wheel nut was slightly loose and there was no tell-tale sign of rust spray. Even if the prohibition is correctly imposed and matters are taken further by VOSA the bottom line is that it can be shown that a robust system was in place and the problem arose despite the system not because of it - but the argument is only really effective with the back-up paperwork.

Tim Ridyard is a partner and road transport lawyer at Barker Gotelee Solicitors 01473-611211

Failure to identify driver s172 Road Traffic Act 1988.

The Divisional Court has just dealt with yet another 'failure to identify driver' case of which there have been quite a number over the last year or so in Weightman .v. DPP [2007] Divisional Court 6 March 2007.

It is important for operators and drivers to be conscious that a failure to use "all due diligence" to ascertain the identity of a driver of a car may lead to conviction of a business, a sole trader or partners individually and their personal driving licences will be endorsed with penalty points. Directors and company staff cannot avoid personal liability by hiding behind the company veil as summonses can be issued against individuals within companies if there has been connivance in hiding the identity of a driver.

This decision highlights the failings in the Magistrates to think a case through rationally and/or provide a satisfactory explanation of their findings. What this and previous cases really indicate is that it is necessary to really think through the driver identification process and use all reasonable procedures to try to ascertain the driver's identity - in some businesses it is almost impossible not to know who the driver is (e.g. through tachograph records); in other businesses, however, for example where pool cars are shared, it is harder although even a small amount of investigation can usually narrow down the identity to a few drivers, none of whom of course may wish to own up, in the knowledge that they will potentially have points endorsed on their licence for whatever offence is alleged.

In the case of Weightman, which turns on its peculiar facts, the Divisional Court allowed an appeal by the driver who alleged it was unreasonable for the Magistrates' Court to have found that he had not used all diligence to try to ascertain the driver of the car. In the case Mr W was the registered keeper of the car which was seen allegedly being driven carelessly. He was served with a driver identification notice in the ususal fashion. On the day of the alleged careless driving Mr W had been in France and could prove this through travel documents which in fact he submitted in his response to the police. He stated that he could not know who the driver was and, further, he could not have ascertained who the driver was.

Mr W was prosecuted, unsurprisingly given that most constabularies appear simply to prosecute and let the courts decide. The Magistrates agreed as a matter of fact that he had been in France at the time, that there was only a small pool of drivers who could have used the car and at the time in question Mr W's son had delegated responsibility for the car.

The Magistrates' convicted him on the basis that he had not used all due diligence to try to find out the identity of the driver of the car. The Divisional Court said the Magistrates had failed to explain satisfactorily why they had rejected Mr W's defence.

Tim Ridyard is a partner and road transport lawyer at Barker Gotelee solicitors www.barkergotelee.co.uk/transport.php

Vehicle Drivers (Certificates of Professional Competence) Regulations 2007

On 27th March 2007 these regulations implement the European Directive requiring drivers to take an initial practical/ theoretical driving test (valid for 5 years) and 35 hours of periodic training every 5 years. Those affected are professional coach, bus and lorry drivers, the only exemptions being those who drive emergency vehicles, police/armed forces, and vehicles used for training/testing.

No new driver may drive a bus on or after 10th September 2008 or a lorry on or after 10th September 2009 on a public road unless the driver has taken the initial CPC test (theory and practical driving test). Drivers who already hold bus or lorry entitlements prior to those dates are exempt and, in effect, have 'acquired' or 'grandfather's' rights. The initial CPC test costs £30.00 for the theory part and £41.00 for the practical. Those who wish to provide periodic training courses will be authorised to do so on payment a fee of £1,500.00 and there is a separate fee of £250.00 for approval of every course which is provided.

Once a driver has passed the initial CPC test or completed 35 hours of periodic training he/she must be issued with a driver qualification card (cost £25.00).

Drivers who have not needed to pass the initial CPC test because they have 'acquired rights' must have completed 35 hours of pre-periodic training by 10th September 2013 (bus drivers) and 10th September 2014 (lorry drivers). It is an offence to drive without a CPC - maximum fine £1,000.00 (level 3 current level).

Drivers who are required to have a CPC must be able to produce driving entitlement to the Police or VOSA (failure to do so is also an offence - maximum fine £1,000.00). Further offences are created for failure to surrender cards or documents which have errors( max £1000 fine); forging or making false statements is also an offence (maximum punishment 2 years imprisonment).

The Motor Vehicles (Driving Licences) Regulations are amended substituting new minimum age requirements for bus and lorry drivers who have passed the initial CPC test - 21, not 18, for bus drivers and lorry drivers with some variation for bus drivers depending on distance of routes driven.

These regulations were laid before Parliament on 2nd March 2007. This is not definitive account of the regulations which should be studied closely for further details.
Tim Ridyard, Solicitor (www.barkergotelee.co.uk)

Regulation 561/3006 applies to the 'carriage by road' of goods..., or passengers.

Carriage by road is defined in Article 4 as 'any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of passengers or goods.

The interpretation of this by some seems to suggest that if any driving on a given day is 'in scope' driving then any off-road driving recorded (for whatever purpose) counts towards the daily driving limit. But is this correct? If the journey is complete why should subsequent 'off-road' driving count? Is it not entirely seperate?

E.g. lorry drives towards destination on main road, enters private road and completes journey ( all driving counts as driving time) but subsequently (as a seperate and unrelated off road driving phase) the driver unhitches his trailer, moves his tractor unit or drives off road around the farm. The VOSA approach suggests it will not regard this as 'driving time' but rather other work.

Is this not surely the correct interpretation? Simply because the new regs define 'driving time' as any time recorded by an analogue or digital tachograph does not surely mean all off-road driving on a given day counts as such if some public road driving has taken place. The key is surely the word 'journey' in article 4 and whether the off-road driving is a part or link of the 'journey'.

When a journey is regarded as complete may be the subject of case-law in due course - that is my interpretation of the new provisions. If anyone thinks otherwise then......answers on a postcard please.....this is real, developing law.

Tim Ridyard is a Solicitor and Partner at Ipswich-based Barker Gotelee Solicitors.