Falling foul of the law

In the second part of RoSPA Fleet Safety Consultant John Greenhough’s recent article in Health and Safety at Work, he delves into the law and your responsibilities as a fleet manager…

Nottingham County Council was fined £1million, plus costs in excess of £10,000, following a guilty plea of breaching the Health and Safety at Work Act.  It concerned an injury to a member of the public, due to a council worker collecting branches from fallen trees for disposal in a public park area.  In transporting the branches, the driver was unable to see clearly in front of him and collided with an elderly disabled gentleman. The HSE found:

  • Failures in the SSW (Safe Systems of Work) to segregate the worker and his vehicle from the public movement
  • Failure to properly train the worker to a satisfactory level of competence (as a banksman)
  • Failure to ensure the machinery was suitable for the task
  • A lack of supervision
  • Failure to properly plan the work to a high enough degree.

The HSE spokesman said: “The failure to properly plan this work and put in place straight forward control measures not only put the gentleman at risk, but also endangered other members of the public walking with him. Duty holders have the responsibility to assess the work they do in public areas to lower the risk of harm and injury, particularly when they introduce new plant or equipment.”

Clearly there is a need to have proper systems in place to ensure compliance, but importantly it is key to ensure that the ‘what’ that is expected at a senior level is carried out at the workface. Lip service is not sufficient, it must be seen to be working. Only an in-depth independent audit can truly check this.

Fatal Collision

In a fatal collision on the A34, just south of Abingdon, involving a lorry driver, five people died and five received life changing injuries. Initially the lorry driver blamed defective brakes for the collision, which was later proven to be a false claim as investigations proved that he had in fact been distracted when using his mobile phone to change music, and that for 45 seconds he had driven without any forward observation of the road ahead. This, despite having been involved with an internal disciplinary that same day where he signed a declaration stating he would not use his phone while driving. While we know many of the details of that fateful crash, we know very little about the company he drove for.

What does the law expect?

It does not require you to eliminate all risks, but you are required to protect people ‘as far as reasonably practical’ to balance the burden of administration and cost against the level of risk. Organisations are legally required to assess risks in the workplace and to put into place a plan to control risks.

Section 40 of the Act places the burden of proof on the defendant (known as the reverse burden of proof). In the case of Davies v HSE (Dec 2002) Lord Justice Tuckey stated: “When considering whether a particular provision is within reasonable limits, the primary concern is not whether the defendant must disprove a particular element of an offence, but rather that he may be convicted while a reasonable doubt exists. Following an incident which might give rise to a prosecution the information about when and what steps have been taken will be known to the defendant, but may not be known to the enforcing authority, especially in complex cases involving state of the art technology or complicated processes…in reality the defendant will be and will remain the only person who really knows when and what he has done to avoid the risk in question.”

Interventions

It’s easy to blame the driver when it goes wrong, but they are only fully in charge in the final moments before an incident.

The choice to employ them was the organisations, the training is down to the organisation, the route used is often prescribed, the vehicle selection restricted, the load predetermined, the schedule laid out and movements monitored. This is all organisational, and the elements that will form part of an investigation following an incident.

Historically the main thrust of intervention has been towards driver training, often post incident. Over time this has changed and more delivery has been around improving the driving standard of the individual driver. But this is often expensive, time consuming and in cases even inappropriate.

An HSE-sponsored research review (http://www.hse.gov.uk/research/rrpdf/rr020.pdf) states: “The (report) details the findings aimed at identifying the individual differences that are associated with driving behaviour and road traffic accidents. Age, gender, ethnicity, education, personality, risk perception, social deviance, previous accident involvement, experience, stress, life events, fatigue and physiology are presented. It is thought that a greater understanding of these issues will aid in the development of more appropriate and effective road safety policies and procedures, and in doing so reduce the number of work-related road traffic incidents”.

red bus on road near big ben in london

I recently worked with a London Bus company which has recognised this issue. It has a driver training school that teaches new recruits to a standard required to pass the DVSA Category D test. It recognised that despite this, the drivers were still having issues, and not just those who were newly-qualified. In an attempt to address this, the company utilised the services of a driver training provider to upskill the workforce. By their admission they had a lot of drivers who could drive better in the short term, but incident rates soon increased to their previous levels.

The bus company referred to above identified a need to improve the behaviour of its drivers, and has begun a trial to train selected employees to act as mentors/coaches to new recruits or identified ‘at risk’ drivers, to support their development from within their peer group, to help identify those ‘problematic’ drivers who need further interventions and free up the managers’ time. Initially these ‘mentors’ were resistant to a ‘coaching’ style approach, preferring to stick to the tried and trusted methods of instruction. At the end of the training course they were extolling the virtues of the new training, fully embracing the benefits of how changing a driver’s behaviour could improve safety.

This may seem a dramatic approach to improving driver training, but if the interventions are wrong, they are pointless. What is the benefit of improving a driver’s ability to move forwards when the issue occurs when they are reversing?

Toolbox talks

A courier company I was referred to, had an issue with drivers reversing into pedestrians. The drivers were observed driving forwards into parking spaces and then reversing out of them when leaving the sites. The reason the drivers did this, despite a company edict to reverse into spaces, was that it was quicker. An explanation that only the first delivery would be delayed, by no more than one minute, was followed by the benefits afforded to the prescribed process. I’m not aware of the results of the training, but I never had to go back to deal with a reversing issue. An example of toolbox talks in action.

In the case of the A34 collision, the only thing we know about the company involved is that they had support and disciplinary processes, and that these had been followed for infringements of policy. They had a robust system in place.

The use of a driver intervention matrix to identify ‘at risk’ drivers, along with appropriate support or discipline procedures to follow, is another simple but effective tool that can be adapted to all drivers across all disciplines. This will help target the correct interventions in a resource positive manner.

Simple techniques such as stickers to remind drivers to check mirrors for cyclists and motorbikes before signalling or turning, a sign to remind them to turn off mobile phones before beginning a journey or having height and width information easily visible in the cab area can all reduce collisions and improve safety.

person s hand reflecting on car wing mirror

I have noticed construction sites displaying a ‘how long since an incident has occurred’ sign, usually proudly displayed at the entrance. Why not display something similar showing how many days/miles/journeys since an incident on road? This might remind and prompt all drivers of their responsibilities, promote safe driving and encourage a behavioural change.

Changing behaviour

The profession of driver training has long recognised that to change the behaviour of the driver and to embed those skills required to improve road safety, you need to begin at the very top of the business with the board and senior managers. The organisation needs to demonstrate though its policy statements a commitment to safety in general and organisational road risk in particular. It needs to give its managers and supervisors the tools and resources required to get the job done safely and effectively, to carry out reviews and audits of its protocols and procedures from the highest level to the ground floor to ensure compliance is being met, to identify where the gaps are occurring and target appropriate interventions where appropriate, and to evidence all of these steps.

When I have delivered the National Driver Offender Retraining Scheme (NDORS) Speed Awareness Courses in the past, I often made reference to the fact that as the driver you have control over the ‘input’ but will be judged on the ‘output’. For the driver this is control of the speed (the input) and the injuries sustained by others (the output). The judgement for a business will be no less based on the output, it’s just the input that has changed.

Occupational road safety and driver education is not a box ticking exercise, but literally a matter of life and death.

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