Two recent cases have required the courts to determine the liability of employers to their employees injured in the course of driving for work.
And the judgements will have far-reaching ramifications for all fleets.
In 2004, the case of Land Rover and Exel Logistics (see panel, below) showed that in certain circumstances, the driver could be exonerated, but the fleet or their contractors will be held responsible. It also highlighted the importance of an audit trail, which is good fleet management practice and the best line of defence to any prosecution.
The Court of Appeal decision in the Eyres case followed this line of thinking.
The Eyres case concerned the topical issues of employees using mobile phones whilst driving and fatigue. On August 11, 2004, Michael Eyres – a kitchen fitter with Atkinsons Kitchens and Bedrooms – was driving back from a job when an accident occurred. No other vehicle was involved.
Mr Eyres was paralysed as a result of the accident.
The company was made up of young individuals with a strong work ethic. The managing director, Craig Atkinson, who was then 28 years old, was asleep in the passenger seat when the accident occurred.
The working day had begun when they met at their factory in Bradford at 3.30am. Mr Eyres had only had four-and-a-half hours’ sleep. They drove to a job in Swindon and then to Sidmouth in Devon – a job they left at 7pm.
At this point Mr Eyres indicated that he was “knackered” and asked if they were going to stay overnight. They both had overnight bags just in case, although it was apparently common practice to drive home at the end of the day. It was resolved that they would drive home, a journey of almost 300 miles.
Mr Eyres drove and Mr Atkinson slept most of the way. After they had stopped at Bristol for fuel, they passed a number of service stations but did not stop to rest.
While driving back, Mr Eyres was using his mobile phone – this was said to be common practice at
Atkinsons. Leading up to the accident, he sent 18 texts and received 10, at a time when his average speed was calculated at 83.5mph. The accident happened at 10.15pm when they were still around 30 miles from Bradford.
No explanation was offered as to what caused Mr Eyres to brake heavily, but his actions caused the van to roll over, resulting in his serious injury.
Mr Eyres sued his employer for causing his injury. At the original trial, his case was thrown out by the judge who found that Mr Eyres had caused the accident by using his mobile phone while driving.
At the appeal it was argued that the accident was caused not by distraction from using a mobile phone, but by Mr Eyres falling asleep at the wheel.
The sleep contention was supported by a sleep expert who concluded that as Mr Eyres would normally have gone to sleep around the time the accident occurred, it was likely that his natural rhythms had triggered a “micro sleep”.
The Court of Appeal found, ironically, that the combination of excessive speed and use of the mobile phone probably contributed to Mr Eyres remaining awake due to the need to concentrate harder. It was after he stopped texting that he fell asleep.
The issue for Atkinsons was what, as a reasonable employer, could it have done to prevent this accident.
Clearly the first thing would have been to prevent the use of mobile phones while driving.
Although this was not found to be the ultimate cause of the accident, it seems to be the case that the use of the mobile phone somehow extended Mr Eyres’ ability to drive while fatigued, ultimately resulting in a “micro sleep” when the concentration needed to use the phone ended.
One could argue that this exacerbated the risk of fatigue, resulting in Mr Eyres falling asleep at the wheel.
Mobile phones are undoubtedly a distraction while driving but it is a hitherto unknown consequence that the concentration levels required may delay the onset of fatigue as well as increase the risk of an accident.
The fatigue element is altogether more complicated – how was Atkinsons to know that Mr Eyres had too little quality sleep on the previous night? This was exactly the same scenario seen in the Gary Hart accident at Selby.
There was clearly an obvious risk of driver fatigue – the working day commenced at 3.30am and didn’t end until after the job in Sidmouth had finished at 7pm, with a 300-mile journey still to complete.
It seems the question of fatigue was recognised within the company as overnight bags were carried.
The failing appears to have been that drivers were permitted to carry on driving with only cursory enquiries as to whether they were up to the task.
Notwithstanding these difficulties, the Court of Appeal considered that the employer was liable for placing the employee in a position where fatigue could impair his ability to drive safely. But what of the health and safety obligations of the driver?
It is clear that drivers have a responsibility for their own and others’ health and safety. In this case it manifested itself in a reduction of Mr Eyres’ damages by 33% to reflect his failure to wear a seatbelt and to stop for a rest when he should have realised that he was clearly fatigued.
Consequently, Atkinsons was found to be 67% to blame.
It is now common for fleets to have policies in place which are designed to combat fatigue and regulate mobile phone use while driving. The difficulty is always how such policies are implemented and monitored.
This case demonstrates just how difficult it is for fleets to prove to a court’s satisfaction that they have complied fully with their health and safety obligations.
Land Rover v Curran v Exel Logistics
Wayne Curran was a Land Rover employee and was using a company Defender when it crashed on the M6, injuring passenger Paul Stimpson.
It was subsequently established that the rear tyres were under-inflated and the front offside tyre had deflated. Exel Logistics had previously assembled the front offside wheel and tyre and had allowed dirt and grit to get in between the inner tube and tyre casing, which had caused the tyre to split.
Neither Land Rover’s under-inflating of the rear tyres nor the deflated front tyres were sole causes of the crash.
But the two factors combined made the vehicle unstable and Curran was unable to control it when it fishtailed and rolled over. The court found both Land Rover and Exel equally responsible.