Michael Appleby. Partner Housemans Solicitors

Transcription

1 Michael Appleby Partner Housemans Solicitors

2 Fitness to Drive Road Safety Conference Wales 30 th June 2009 THE LEGAL PERSPECTIVE By Mike Appleby Mike Appleby Housemans Solicitors 11 The Terrace Barnes London SW13 ONP Telephone Mobile

3 Common Misconceptions about Work Related Road Risk (WRRR) 1. Investigators are only interested in the driver 2. WRRR policies and documented procedures provide full protection 3. WRRR can be delegated/contracted out

4 INDG 382 Driving at Work The Risk: 1.Driver 2.Vehicle 3.Journey 1 and 3 relevant to Fitness to Drive

5 Driver fitness and health 1.Medical conditions 2.Eyesight 3.Medication 4.Unfit through alcohol/drugs

6 Journey 1. Workload 2. Fatigue

7 Four Fatigue/Workload Cases R v Stephen Bowles and Julie Bowles (1999) R v Melvyn Spree (2004) R v Produce Connection (2006) Eyres v Atkinsons Kitchens (2007)

8 Road Death Investigation Manual Corporate responsibility will be considered where: 1. Failures in safety management have contributed to accident; and/or 2. There is a serious continuing risk

9 AND on the driver the Manual says police will consider cases where: Fitness and Health the employer has ignored obvious signs that an employee is unfit to drive, for example, from the effects of drink or drugs.

10 The Law Corporate Manslaughter and Corporate Homicide Act 2007 Individual Gross negligence manslaughter Sections 2 and 3 Health and Safety at Work Act organisation Sections 7 and 37 Health and Safety at Work Act Individual

11 Health and Safety at Work Act 1974 R v Chargot Ltd and others House of Lords 2008 section 2 and 3 HSWA cases Accident = Prosecution s case.then Defence must prove innocence ie did all that was reasonably practicable

12 Section 37 HSWA If there is a proper system set up for health and safety that will usually be sufficient for [a director] to say I have done my duty. I have set up that system, in the absence of material to make it plain to him that something was actually wrong with it. Latham L J during the course of argument in R v P Ltd and G (2007) All ER (D) 173(Jul) (CA)

13 The human mind is prone to suppose the existence of more order and regularity in the world than it finds. Sir Francis Bacon, The New Organon, 1620

14 Being able to tell your story will be an important part of being defendable

15 Things to think about now 1. How will your organisation be able to demonstrate it has taken reasonably practicable steps to manage WRRR? How will a manager be able to demonstrate he/she has done their job? 2. Check your organisation s insurance policies - Which ones will respond and in what circumstances? - Will representation for individuals be covered? - Will there be insurance cover before there is a prosecution? - Will the insurance cover representation in the Crown Court? Note: Regulation 6 of the Insurance Companies( legal Expenses Insurance) Regulations 1990says that the insurer cannot restrict the insured s choice of solicitor. This applies to any insurance cover that includes legal expensive cover

16 3. How will your organisation deal with conflicts of interest between (i) the company and individuals and (ii) between individuals 4. Does your organisation have a policy for dealing with a criminal investigation, particularity in respect of documents requested by the investigators? 5. How will your organisation deal with the media in the event of an investigation/prosecution? 6. How will your organisation communicate with its workforce and its shareholders in the event of an investigation/prosecution?

17 THE END The views expressed in this presentation are not those necessarily of Housemans The information contained in this presentation is for guidance only and is given without responsibility on the part of Mike Appleby or Housemans for loss occasioned to any person acting or refraining from action as a result of any information or view given