In addition, the prospect of the new offence of corporate killing finally hitting the statue books after the general election seems relatively certain.
The issue of corporate responsibility is never far from the minds of those of us connected with fleet and motor matters. Indeed, there are now a plethora of goods and services designed to keep us out of trouble.
Fleet managers would be forgiven for thinking that every time there was a fatal accident the police were committed to finding some responsibility on the part of the employer of any fleet drivers involved.
The Court of Appeal recently considered the issue of the duty of care owed to another individual in the case of the gross negligence manslaughter prosecution in Regina v Willoughby.
Although this was not a prosecution arising from driving, the three appeal judges hearing the case took the opportunity to debate the current law and the necessary test to be applied to direct a jury hearing such a case.
They decided that where a defendant was charged with manslaughter by gross negligence in the course of an unlawful act – the basis of any corporate manslaughter prosecution arising from a driving offence – it was a question for the jury rather than the judge trying the case, to find whether the defendant owed the victim a duty of care once the evidence of a duty of care had been established.
Put in layman’s terms, if the prosecution proved that a duty of care existed at the time of an accident, the only requirement upon a jury was to consider whether the breach of the duty of care caused the death and whether that breach amounted to a crime.
Applying this logic to an occupational driving case, for a successful corporate manslaughter conviction, the prosecution would have to prove that a fleet manager owed a duty of care to members of the public who may come into conflict with one of their vehicles on the road. In light of the HSE guidelines on the management of occupational vehicles it would, I believe, be a relatively simple matter to establish that the guidelines created a duty of care on the part of the fleet manager to both the fleet driver and the public and that any breach of them would have resulted in a breach of that duty.
Once the duty had been established, it would then be a matter for the jury to decide whether the breach caused the death. If the accident was caused by a mechanical defect, fatigue, using a mobile phone or one of the other known common causes of work-related accidents, then it is difficult to comprehend how a juror would not link the fatality to the circumstances leading up to the accident.
The jury would consider whether the breach of the duty amounted to a crime. This would be measured by public perception of the level of control exercised by the fleet manager over the condition of the vehicle and driver at the time of the accident and in particular, whether the fleet manager or company should be punished for their part in the accident.
The outcome of the Hatfield prosecutions is not likely to be known for some months.
It can only be hoped that firmer guidelines as to what the prosecution need to establish to secure a conviction for corporate manslaughter will be an outcome. Until then, the assessment of responsibility is ultimately going to fall into the hands of a jury, a somewhat unpredictable outcome.
The warning to fleet managers continues to be ‘manage the risk’ and do not let your fate rest in the hands of a jury whose perception of occupational drivers is likely to be mobile roadblocks of trucks crawling up hills, the activities of white van man and rep-mobiles tearing around the highways and by-ways of Britain.
David Faithful
Partner, Clarke Wilmott Solicitors
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