On 28 June 2013, two former partners of AJ Haulage were sentenced to a combined period of 6.5 years for manslaughter offences after one of their drivers fell asleep at the wheel and died when his lorry collided with stationary traffic in February 2010.
The driver, Stephen Kenyon’s, tachograph records showed that he had worked for 19 hours and 15 minutes on the day that he died. In that time he had been driving for 13 hours and 8 minutes and had covered 592 miles.
The case against the defendants was that management at AJ Haulage ‘tolerated if not encouraged’ their employees to work over and above the hours set out by EU law. The defendants permitted Mr Kenyon to continue driving illegally and as a result were found to have exposed Mr Kenyon to the risk of death because of their gross negligence.
In sentencing the pair, the Judge said: "heavy lorries pose a very real threat to other road users and that threat was substantially increased by the way you ran your haulage business”
A change in approach to Road Traffic Collision investigations?
Employers have a duty of care to their employees, which includes a duty of care to drivers out on the road. Historically, despite the road network being the biggest workplace in the UK, driving activities have not been given as much focus in terms of health and safety enforcement as work activities that take place at an operator’s premises. The historic lack of enforcement of health and safety legislation following RTCs has allowed some operators to become lax in the health and safety systems they have in place for their drivers.
However, cases like the one of AJ Haulage highlight a change in approach by the Police, who are increasingly investigating beyond driver-fault in RTCs in order to consider whether there is any employer accountability for fatal accidents.
It is now becoming standard practice for the police to demand an operator’s safety policies and other documentation, including tachograph records and work rotas, following an RTC involving a professional driver. Following a fatal RTC, police could scrutinise an operator’s systems to check whether the operator has fulfilled their duty to ensure their drivers’ safety. The police might want to look at drivers’ tachographs charts, driver training records and vehicle maintenance to see whether the operator or its directors and managers have been properly managing the safety of their drivers. In the case of AJ Haulage’s partners, they had not ensured the safety of their drivers by allowing them to drive in excess of the legally permitted hours.
Corporate Manslaughter and fatal RTCs
If AJ Haulage had been a company then we may have seen the first corporate manslaughter prosecution for the industry in this case. A company commits the offence of corporate manslaughter if the way in which its activities are managed or organised by its senior management amounts to a gross breach of a duty of care to the deceased. Not only does an operator owe a duty of care to its drivers but also to other road users.
We are yet to see a corporate manslaughter prosecution brought against an operator but this most recent case makes us wonder whether we might see such a case in the near future following an RTC.
The Crown Prosecution Service provides guidance to police on when they should consider charging operators, or their directors, for corporate or individual manslaughter. The CPS specifically advises that corporate or individual responsibility for a death may arise where:
- An operator has no regular system of preventative checks, showing indifference to an obvious risk of injury.
- A company director knows about a defect in a vehicle but allows it to go onto the road before the vehicle is repaired.
- An operator fails to ensure that drivers work proper hours and have appropriate rest periods.
In May 2012, Sergeant Gareth Morgan, Supervisor of South Wales Police Driver Training, warned fleet operators that police forces across the UK are waiting to prosecute an operator for corporate manslaughter. While we are still waiting for that first prosecution some 14 months later, the case against AJ Haulage suggests that the first corporate manslaughter prosecution in the wake of a fatal RTC might be just around the corner. The AJ Haulage case serves as a stark warning to operators to get their systems in place to ensure the safety of drivers and other road users and avoid being convicted of corporate or individual manslaughter if the worst should happen.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.