Careless & dangerous driving - what does a prosecution look like for employers?
21m
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Let‘s Talk Fleet Risk
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Simon: Welcome to Let’s Talk Fleet Risk – a podcast for those who manage drivers and their vehicles, and want to reduce road risk in their organisation.
My guest this month is a legal expert in the field of transport and regulatory law. It’s Chris Green, who is a partner at law firm Keoghs. Welcome to the podcast, Chris.
Chris: Hello, Simon. How are you?
Simon: Very well thank you. Now, I’ve asked Chris onto the show because we’re partnering with Keogh’s to present a mock trial prosecution of a van operator at this year’s Health and Safety event at the NEC later this month. The mock trial presentation will be on Wednesday 26th April in DfBB’s own Driver Safety Theatre – and I’ll give out full details at the end of the podcast.
Now Chris, I don’t want to give the game away as to what happens during this prosecution, but I do want to give a preview of the scenario and then discuss in some broad terms some of the issues that we’re going to be looking at in the presentation.
So, the scenario – roughly speaking – is that a van driver struck a cyclist shortly after starting a morning shift. And it’s a serious incident, with the cyclist taken to hospital and he’s in a pretty bad way – the police have classed his condition as critical. The police would then obviously conduct a roadside investigation to find out what had happened and to find out whether the driver was at fault – what might have happened that had gone wrong. So what would they be looking for in that investigation?
Chris: A couple of things. In the first instance they would have Forensics and Scenes of Crimes Officers present, to see – for example – where there were broken fragments from the car, and to indicate where the collision had taken place. So that might assist in terms of the position of each vehicle in the road, or to gather witness statements from those who were present. These days we see a lot of this is covered by dashcam footage or other CCTV – so that element of the job, many years ago when I started, I’m afraid has gone out of it. So that’s all done for us on a very high-tech, automated level these days. They would be interviewing the driver at the scene and checking suspected drugs or alcohol issues. They’d be asking to see the mobile phone records and potentially seizing it as well. And in addition to that they would be trying to obtain accounts from anybody present and to check the welfare of anybody injured in the collision, including the driver and anybody else as well.
So there’s a number of things they would be doing, and then of course the investigation would carry on afterwards where they would begin the interview process.
Simon: What about the state of the vehicle? How much attention would they give to the roadworthiness of the vehicle at that point?
Chris: It’s absolutely critical, because if there were any suggestion that there were mechanical failure that was either outside of the control of the driver, or something that had manifested itself between the time they started the journey and the time of the crash, then they’ve got to at least explore that possibility before they can decide how blameworthy the driver was. Occasionally I’m afraid, there are still cases that we deal with where there are examples where the vehicle just wasn’t in a serviceable condition, and on that basis it’s a different scenario in terms of trying to establish guilt.
Simon: So, we know that in law the driver is usually responsible for ensuring that the vehicle is safe and that they drive within the highway code. So, what potentially could lead the collision investigators to look beyond the driver and at the employer?
Chris: Well, the employer has still got a duty to protect both the employee who’s driving the car and anybody else who might be affected by that. And in addition to that, any employees who may be carried in the vehicle at the same time as the driver. So, that obligation is actually quite wide. If, for example, there were any suggestion that the employer wasn’t carrying out either mechanical inspections, or didn’t have a policy on the use of mobile phones, drugs and alcohol, eyesight, and these sort of issues, and monitoring the hours that the driver was working… then these days, those are all aspects that the police can and will be looking for. Because there is the potential to bring in the employer as well.
Simon: You mentioned policy there, so let’s delve a little deeper into that. Whenever I’ve seen prosecutions like this in the press, normally reported where there’s are a fatality, they seem to hinge around policy. And those that are found guilty have either failed to implement or failed to follow and establish policy, whereas employers that are found not guilty were generally able to prove that they did have the right policies in place, and that they were rigorously followed and monitored. So, what typical examples do you see of poor practice from a policy point of view, and more importantly what impact would this have on their case in court?
Chris: The thing is with prosecutors, sometimes I wonder whether my opponent is believing that the very fact that an accident has taken place is evidence of the breach. So in other words, you couldn’t have had an accident if all was complied with, and that in itself generates the suspicion that they’re negligent. I’m not sure it’s quite like that, but take for example a case I had recently where it was a company which was really loath to be amending their mobile phone policy. We sat down and, once we’d really spent some time to consider whether the mobile phones were actually necessary in the business, through gritted teeth some people had to concede that actually they probably didn’t need it. So, really, the answer to your question is that they’ve got to be really clear on the test of reasonably practicable. And there is a balance to be struck between the cost and the time and the inconvenience on one side of things – in terms of implementing further measures – and on the other, the risk involved.
So, if that is balanced for example against a serious or fatal incident, then the bar is set quite high. And I think in the first instance, a court and a police prosecutor might want to prove that they’ve actually considered all of the right factors. They’ve then, as you say, got to implement anything that comes out of that process, and then critically, to follow it on the road as well. So it is quite an onerous duty, but whenever things go wrong, with reverse engineering, they would be looking to see whether that’s all been done as it should have been.
Simon: Now, we’re going to be prosecuting a company in our mock trial presentation, so, it’s a fictitious incident obviously but the investigation in this case must have obviously raised some serious concerns about the way the company managed driver safety. And you mentioned a couple of things there that a policy needs to include – mobile phones, driver fatigue, that kind of thing – there are other things as well like driver checks, vehicle defect reporting, that kind of thing. These are all things that should be included in a policy, so how would you expect companies to manage these things and what impact does managing it poorly have in a prosecution?
Chris: Well, the onus is on them. The balance of probabilities there that they would need to demonstrate – i.e. it’s more likely than not that they comply – but the key point is the onus is actually on the company to prove they’re innocent rather than the other way around. So, if I’m prosecuting Health and Safety offences, all I need to show is that the individual was an employee – well that’s usually straightforward, that the company employs people – and that there had been an accident. So, as soon as I’ve established those two factors as a prosecutor, then the onus shifts to the defendant – in this case the company – and they would need to prove they’d done everything they reasonably could, and there’s law on that that suggests that that’s got to be not only in disproportion, but it’s arguably got to be grossly disproportionate, and it’s only those things that you’re entitled not to do as a company.
If roughly the time and the expense involved in putting that measure in place doesn’t look totally out of kilter with the risk of a serious or fatal accident, then really the onus is on you to take that step, or at least explain – having gone through the assessment process – why you don’t think it’s practical. So, be it on your head, and then – as you say – it’s then got to be followed through by the individuals out on the road.
Simon: So, the onus in on the employer to prove that they’re innocent. That would suggest that record-keeping is pretty important, yes?
Chris: Well it would. It’s really sad in my line of work where it’s quite clear that a company has good processes and the custom of practice is that it’s usually followed by people. But of course, many times where there has been a fatal accident, the absence just of one document ironically could be the one that would prove that the measure the company needed to demonstrate it had taken – there’s just no evidence on the point. So, some HSE inspectors say to me that the absence of evidence is evidence of absence – so if it’s not documented it didn’t exist. So, I’m afraid it won’t be the first time a lawyer’s said this, but the key point behind what you’ve said is that you don’t just need to take the step, you need a mechanism to gather and collate and keep the proof of that as well, else it does leave you fairly vulnerable as I’m sure we might see at the trial.
Simon: It’s not just proving that you’ve done something, you’ve implemented a step or a policy now I guess, is it. Because, a key part of this is ensuring that you monitor compliance of that step or policy or procedure – whatever it i
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Are your drivers mentally ready to control a vehicle?
Simon: Hello everyone and welcome to Let’s Talk Fleet Risk. My guest today is James Tillyer, Managing Consultant at Transformotion, based in Ireland, who are specialists in immersive driver training.
Welcome to the podcast James.
James: Thanks Simon, it’s lovely to be here.
Simon: James – perhaps you could start by introducing yourself, and explaining a little bit about who you are and what Transformotion does?
James: Sure. Well, I’ve been involved in road transport for over 20 years now, and a lot of my time has been spent working on driver development – in terms of careers, training, and engagement.
For Transformotion, it’s a road transport consultancy and training developer. We work on projects that focus on things like vehicle autonomy, and what it means for the labour market, as well as driver training. In fact, our latest project is called Gaming DRV, championing the cause for distance learning in formal driver training. We’re also developing prototypes for games and gamification in general, particularly where driver CPC is concerned.
In addition to that, we also develop products for fleet managers, to help them manage vehicles and drivers. It’s a fairly unique service – or I like to think it is – where we build our bespoke toolbox talks, audits, that sort of thing. And that’s offered through a website called EasyFleetr.com.
And then finally, we develop immersive driver training. We use eye-tracking technology – which is a bit of a first in our sector. We use 360-degree video and drone footage to create really engaging visuals, which is all wrapped up into a classroom-based training course. And drivers get to use an interactive app where they improve their knowledge and attention, and it also reduces a lot of the tedious admin tasks because we’ve wrapped up things like feedback forms and ID checks within the app.
So, we do a fair bit, and we’ve wrapped that up into three sections.
Simon: Brilliant. This conversation came about because of a chat that you and I had a couple of months ago around driver wellbeing. At Driving for Better Business, we’ve been looking around a range of issues throughout the quarter that fall under the broad heading of ‘fitness to drive’. So, I was wondering what that term means to you?
James: I remember our conversation very well. I think you’ve hit the nail on the head with that – because it is a very broad term. And it’s sometimes quite difficult to pin down, but for me, it’s about being mentally ready to control a vehicle. A lot of the time, if we’ve got cramp, or a headache, or a cold, it’s quite clear. But it’s more difficult to know if we’re suffering from mental fatigue.
Simon: We know there are rules about how much time you can spend driving in any given day because the concentration required can take its toll over time. This issue of mental fatigue, it’s assuming your head is in the game to start with, isn’t it? If the driver’s got personal issues to deal with, what effect does that have?
James: It’s interesting because one thing we discovered with the immersive training is that through the eye-tracking tech, we can actually see how often a driver’s eye is looking in a certain direction. And the sheer volume of eye movements to point A to point B in a given journey is enormous – it’s huge. And a driver doesn’t realise it, because it’s an involuntary movement. But it goes some way to explain why a professional driver feels so exhausted at the end of the day. It’s not just the physical task of driving, it’s also what their brain is doing, and actually where they’re looking.
But in terms of personal issues, it’s very difficult for anyone to avoid thinking about the general rigours of life – I think we all appreciate that. But the result is almost always emotive. Things like anger, resentment, worry – they all come to the fore.
And in terms of what that means for driving – well that tends to lead to things like erratic driving, risk taking, distraction, speeding. All the negative stuff. And obviously those are really detrimental to the safety of the driver and other road users.
Simon: Just give us some examples of what those issues can be. What sort of issues are we talking about that drivers can bring into the cab with them?
James: It’s the ones you might expect. So generally speaking, health issues, money worries, relationships. But more than that, it can be the hum drum. Things like daydreaming about the latest box set, what’s for tea, or the next holiday – things like that. All of those factors create a distraction or brain fog that’s detrimental to driving.
We very often get into a car or van or truck or bus and we just drive – it’s very much an automated thing. We just switch to driver mode – and it’s fair to say that some do. But it’s not a natural given ability. An argument, for example, that happens at home tends to linger once you’re out and about. The issue can fester, and grow in your mind, and take over the rational part of your brain. When that happens, it’s an alarm – it’s a bit of an issue that can’t be reversed. Alternatively, as I said, worrying can cause the brain to become fogged. Which again, leads to late braking or poor judgment.
There are so many different factors, in terms of mental awareness, that have an impact on your driving.
Simon: You mentioned the eye tracker. Did you notice any trends with those eye movements that possibly – I don’t know whether you discussed the results with the drivers afterwards and were able to match up certain levels of distraction, or types of distraction, with the behaviour they were exhibiting and the eye movements. Were there any lessons you took out of that?
James: It’s very interesting because when you do the study on eye tracking and break down the eye movements, you have the benefit of being able to see – through heat maps and single points on a video – where exactly they’ve been looking and how often.
What we don’t really know is why. So, what we’ve done in the past is approach the driver and say “look, we’ve discovered that you’ve been doing this, do you know why it is?”. And more often than not, they don’t know. I’ll give you an example – we had a situation where we filmed a driver joining a motorway. As he was joining the motorway, he looked twice as much to his nearside than his offside. You’d think that doesn’t really make sense, because as you’re joining a motorway, you’d naturally look in your offside – looking for traffic and traffic flow, and where the gap is.
He said, “I don’t really know why I did that”, and we pinned it down to him being so focused on looking at the nearside because of left turns. This was an HGV, he very often drives in London, and his brain has almost tuned in to naturally look at the nearside as a way of protecting cyclists when they’re making left-hand turns. So, what we’ve discovered, is that naturally over time, the brain has been trained, but the awareness just isn’t there – because it becomes an automated response. That was quite interesting.
Simon: I can understand why that would be an automated response – he’s a professional driver and he’s doing it day-in, day-out. But of course, it’s important to remember that we’re not just talking about those drivers who spend all, or most, of the day on the road. There’s many of us – me included – who go out for occasional meetings too.
Presumably, those sorts of drivers are prone to the same sort of distractions – relationships at work that could affect you in the same way as relationships at home, worries about work or deadlines, in the same way as you might worry about health or money at home. Would that be true?
James: Absolutely. I think as an example, if you take a hands-free call, we all know that’s a well-known distraction. But how many of us actually think about the effect of the call, once that call has ended? The conversation may have been heated, for example – something you disagreed with. In which case, when you end that call, your emotions possibly take over your rational driving style. As a result of that discussion, your ability to drive may decrease – which means you increase the risk.
Something that I’ve researched before is called cognitive tunnelling – it sounds very scientific, and it certainly is, but the fundamentals of it are quite straightforward. Why cognitive tunnelling is important is that it often flies under the radar, but it’s the main cause of accidents involving human error. In a nutshell, it’s where the brain focuses on a single task or an issue, and neglects the other factors.
As an example: a driver is travelling on an unfamiliar road – which is often the case. They’re looking for an entrance. They’re so fixated with finding that entrance that things like a cyclist, or a tight bend, or warning alarms, become barely noticed or registered. Of course, what that does, is it means that through cognitive tunnelling, they’ve created risk for all other factors on the road. That’s one to really pin down, because there are so many risks involved there.
Simon: You raised an interesting point about finishing a call, and that still affecting your emotional state. A very good friend at the Driving for Better Business programme is Professor Gemma Briggs, a professor at the Open University who is one of the UK’s foremost experts on mobile phone distraction from driving. I had a discussion with her the other day, and she said your brain can take up to five minutes to disengage from that call because you’re still thinking about the content of that call, mulling over certain things – you’re not back in the game.
It's not a case that you end the call and you’re back concentrating on driving – your head is still out of the game for another five minutes after that.
James: I’m not surprised that that research has
Diabetes - a hidden epidemic for Driver Managers?
Welcome to Let's Talk Fleet Risk, a podcast for those who manage drivers and vehicles, and want to reduce road risk in their organisation. In this episode, I'm talking to Kate Walker, Managing Director of the Diabetes Safety Organisation.
We'll be discussing:
- Why Driver Safety Managers need to understand the hidden epidemic that is diabetes.
- When is diabetes a DVLA notifiable condition?
- The potential consequences of a typical on-the-road diet, enabling conversations with employees around driving with diabetes.
- Good practice for managing diabetes risk, and some resources to help.
Hello everyone and welcome to this edition of Let's Talk Fleet Risk. This quarter we're looking at various aspects of fitness to drive, and my guest today is Kate Walker, who is Managing Director of the Diabetes Safety Organisation.
Welcome to the podcast Kate.
Kate: Thanks for having me today, Simon.
Simon: Kate your website says that diabetes is a hidden epidemic leaving all companies exposed to increased absenteeism, increased risk of accidents, and therefore increased risk of company liability, so, why is that? And why does somebody who manages the safety of people who drive for work need to listen to this podcast?
Kate: I think it’s really important to address this epidemic of diabetes. I think it's hidden in several ways, so I don't think people necessarily living with it understand the complexity of it. And also, I think it's hidden in the workplace.
There's actually one in 12 in the working population living with diabetes and we've just hit 5 million people in the UK. And we can touch on some of the stats in a minute but in terms of your question around why, why is this important for a manager… I think we need to understand that diabetes is a known foreseeable risk in the workplace. And there is legislation that needs to be followed, which again, is often not understood – people think diabetes and they think medical, GPs. And I think there’s a lot of work that needs to be done around bringing this to light and removing the stigma, and also understanding the implications in the workplace.
We know that there are 5 million people with the condition. A further 12.6 million in the UK have pre-diabetes. So, these numbers are significant. And if people are unmanaged, time off of work increases, there is an increased risk of accidents from those who are undiagnosed, or those who are not necessarily managing it as well – we know it’s not always easy to get GP appointments, or the time and support that may be needed for people living with diabetes. And there's also the experience we have when we're going to companies – it's hard for people to come forward and share, because of the unknown. Are they going to lose their job? Is their job still safe? What are the requirements? You know, it’s either let's not get diagnosed and we never have to address it, or let's hide away from it – and that poses a risk in so many different ways. As an employer as well – and I think for any safety managers –there's a real need to understand the difference between the two types of diabetes, which we’ll come on to.
The right conversation needs to be had, also to understand that the Health and Safety at Work Act does come in here, and people, need to make sure they are managing this risk. People living with diabetes have to also comply with DVLA regulations, and they fit under the Equality Act because, more often than not, diabetes would be a disability. So, for all of those reasons, I think we really need to start a conversation around diabetes across the industry to make our roads safer and to help anyone who is living with it to feel safe to come forward, and really be able to share and understand that it's okay and safe to do so.
Simon: Before we started this discussion, I went on the DVLA's website just to see what they had to say about diabetes and notifiable conditions. And it said that if you have diabetes and you manage it with diet, it's not notifiable. But if you do need insulin, it is notifiable.
So am I right in thinking that if you're treating with insulin, it's type one, if you're treating with diet, it's type two. And if so, what's the difference? And I guess, how do you come to have diabetes?
Kate: So no, it's not only type one on insulin. And again, this question alone, I think really raises a good question of how can we have the right conversation in the workplace if we don't understand diabetes and the two variations here?
So, type one people living with diabetes often are frustrated. So, type one diabetes is an autoimmune disease – at some point, their body had a reaction and now their pancreas, which produces insulin, no longer works. And of the 5 million, only 4% - about 400,000 – are living with type one diabetes. Predominantly everybody else is living with type two. In my experience, when we work with people with type one diabetes, they find it frustrating that they are bundled into the same category, and they’re not understood. You’ll often see them now with sensors on their arms, and they have to manage their diabetes throughout the day – so any time they eat, they have to put the right insulin in. They’re effectively self-regulating their own blood sugar levels, which we – myself, as someone not living with diabetes – take for granted; my blood sugars are managed for me. They’re having to deal with it – it’s effectively like another job. Even temperature can cause insulin to do something. As a condition, it’s a lot of work for someone living with it.
On the other side, we've got people living with type 2 – so that's 95 % of the 5 million – and 600 ,000 people with type 2 diabetes are also on insulin. Now, the condition is different. So, for type 2 diabetes, it's often progressive. The easiest analogy – if we use vehicles – is if I was driving down to London from Birmingham in first gear, we wouldn’t be surprised if my car engine was smoking. I hadn’t changed gears. If I turn around, come back, change gears, hopefully I’m in no further trouble. If I keep driving at first, at some point the engine will smoke and it will breakdown.
The pancreas, from the perspective of living with type two diabetes is very similar. So, if we look after our body, it will work effectively. Over time, if we keep driving in first or pushing too much in – and that could be stress, it could be other medical conditions, it could be the choices of foods, lifestyle… there's many factors that contribute to type two. But if it all pushes on that organ too often, at some point we get the smoke, the warning signs of diabetes, pre-diabetes. And if we ignore that, it turns into type two diabetes.
Sadly, it’s a progressive disease – caught early it can be managed on food and lifestyle choices. But left, or not well-managed, it can need medication from different strengths of tablets – some of them strong, and reportable to the DVLA – right up to insulin. So, people living with type two diabetes who are on insulin, they don’t become type one – they are type two on insulin. As I said, there are 600,000 in the UK.
So, when we look at insulin, often people with type one diabetes have had it since they were young, and they get a lot of support. Often people with type two diabetes on insulin are not as well educated because there’s not as much support for them. So, I think it’s another place, in the workplace, to help educate and support people living with both types of diabetes on insulin. And under DVLA regulations, they have to test every 2 hours whilst driving on insulin to ensure the blood levels are correct – safely – for the prevention of any accidents happening due to their blood sugar levels dropping too quickly and having a hype.
So, if we can have managers and people inside companies understanding the difference, understanding the requirements of people, and the differences that they're living with, it really allows it to become safer – and there are no blanket bans in the UK. So again, anyone can drive as long as their blood sugars are well managed and they're looking after themselves.
Simon: Well, what would be typical symptoms of someone who is pre-diabetic?
Kate: Classic symptoms of pre-diabetes is over-thirsty. Changing sexual excitement. Going to the toilet regularly. Getting too hot. The difficulty – which is why we say that it’s hidden – is they’re very subtle symptoms. Over-fatigued, can feel more stressed than normal… they’re all symptoms we could put down to a busy day, or work, or drinking too much. Diabetes UK have a Know Your Risk Score – you can do some questions and check it out and I absolutely recommend it. The sooner we catch the pre-diabetes, or the edge of diabetes, it’s reversable for many – not all – and actually, it prevents the complications and the damage that occurs, which are really the major problems that come with diabetes down the line. So, there are some good solutions to it but caught early it can make a massive difference.
Simon: You said previously that diet was one of the possible contributory factors, and a lot of the drivers that are managed by the audience on the call today… a lot of those drivers are on the road all day and they rely on cafes petrol stations, motorway service stations, etcetera for their daily nutrition, which obviously isn't great. What are the likely consequences of that?
Kate: Yeah, I think this is an industry that is faced with some additional challenges. We've got to look at what impacts diabetes. Stress does, as we've said, nutrition does, movement does. So, can we move a little bit more? Well, that's let’s have a little walk around whilst we're in those cafes and petrol stations just a little bit longer.
The food choices are interesting. We all know what it's like to stop at a cafe, but are th
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Welcome to Let’s Talk Fleet Risk – a podcast for those who manage drivers and vehicles and want to reduce road risk in their organization.
In this episode I’m talking to Nick Reed, Founder of Reed Mobility and Chief Road Safety Adviser to National Highways about the active vehicle safety technologies known as Advanced Driver Assistance Systems. We’ll be discussing:
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