A company that employed a driver who fell asleep at the wheel and killed two charity cyclists could face criminal charges.
Robert Palmer was jailed for eight-and-a-half years after pleading guilty to causing death by dangerous driving and a further charge of dangerous driving.
Frys Logistics, which employed the 32-year-old, could also find itself in the dock accused of health and safety failings in relation to the case.
Potential charges against the haulage company and its bosses could include breaches of the Health and Safety at Work Act or even a charge of corporate manslaughter.
Devon and Cornwall Police told Fleet News that investigations into the firm are ongoing and as a result it could not say anything further until they are complete. A spokesman added: “No charges have been brought at this stage.”
Truro Crown Court heard how Palmer hit the two men in his HGV when returning to Frys Logistics’s yard on the A30 near Newquay, in Cornwall, last year – only to cause another serious collision in the same vehicle on the same road 11 weeks later while on bail.
Driving for excessive hours
The prosecution said Palmer worked for long hours, driving in the evenings and then carrying out mechanical work for the Launceston-based company during the day.
However, after the crash, which occurred at 8.30am on July 2, 2013, Palmer told police that having finished an identical shift the previous day, he had gone home and slept until 6.30pm.
Investigations revealed he had, in fact, been working on maintenance at the Frys Logistics depot until 3pm before returning home for a few hours’ sleep.
“During the period of 36 hours before the collision on July 2 he had failed to take sufficient rest,” said prosecutor Philip Lee.
Between 5pm on June 30 and 6am on July 1, Palmer had also sent more than 150 text messages, the court head.
In one exchange about his lack of sleep, Palmer said: “I’ve survived so far.” On the morning of July 1, he texted: “Just leaving home, going back to yard.”
Later, he texted: “Worked till 3pm, had about three hours’ kip. Now back on Lidl run.”
Lee said: “Far from being home and sleeping, he was going back to work. This defendant was habitually working a day shift in the yard and night-time driving shifts.”
The prosecution said Palmer had also altered his tacograph to cover up his lack of sleep.
‘People should not drive when they are feeling sleepy’
Judge Christopher Harvey Clark said: “You failed to ensure that you took sufficient rest. People should not drive when they are feeling very sleepy or, as you were, totally exhausted.
“All the indications are that long before the fatal collision you must, or should have, been aware of your condition.”
Palmer was jailed for seven-and-a-half years for causing death by dangerous driving and a further year for dangerous driving after ploughing into the back of another lorry on September 21, 2013.
Palmer’s disregard for road safety had tragic consequences, but his employer also faces some serious questions around how its driver was managed.
Firstly, why was Palmer working for the company during the day, carrying out maintenance in the yard, before being allowed to drive at night?
Secondly, what action did the employer take against the driver after the initial incident and why was Palmer allowed to continue driving for the company, following the fatal collision, only to be involved in another crash?
There has been no response from Frys Logistics, but experts stressed if fleet operators fail to manage their drivers effectively they should expect to feel the full wrath of the law.
Edward Handley, a former TRL (Transport Research Laboratory) consultant and owner of Work Related Road Safety (WRRS) Solutions, explained that HGV and LGV drivers are subject to the European driver’s hours and tachograph regulations and the Working Time Directive, which both impose strict limits on the amount of time a driver can work.
He said: “These rules would have prohibited Palmer from doing vehicle maintenance work for his employer during the day if he was driving at night.
“The fact that it appears the employer failed to enforce these rules leaves the company open to serious charges, including corporate manslaughter, and quite possibly leaves individual managers and directors open to a charge of manslaughter.”
If this seems unlikely, it is worth examining the case of MJ Graves International. Handley says that one of its drivers had worked an illegal 20-hour shift when he crashed into a broken-down car on the A12 in Essex, killing a motorist.
He said: “The driver, who apparently had little time for ‘quality sleep’, was jailed for four years and the transport manager, Martin Graves, who should have been controlling his drivers and preventing them from breaking the law, was also jailed for four years.
“This case clearly shows that managers and directors can be investigated and prosecuted if they fail in their duties.”
It is also worth noting the Produce Connection case, which was heard at Cambridge Crown Court.
In 2002, a worker employed by Produce Connection had worked a series of three 19-hour shifts when he drifted into the path of an oncoming truck while driving home in the early hours of the morning and was killed. He was thought to be suffering from chronic fatigue and had fallen asleep at the wheel of his van.
“Commuting to and from work was always regarded as outside working hours in the past, and therefore was not covered by any health and safety legislation,” said Handley.
“His employers however, were prosecuted under the Health and Safety at Work Act and the Management of Health and Safety at Work Regulations 1992 for failing to ensure the health and safety of employees and the public. The company pleaded guilty and was fined £30,000 with £24,000 costs.”
The judge said that the company had failed to properly monitor the hours its employees were working.
Predated corporate manslaughter
“This case predated the Corporate Manslaughter Act, but if it happened now it would be quite possible for the prosecution to claim that the company was negligent if it did not monitor and control its worker’s working hours,” added Handley.
The Corporate Manslaughter Act was introduced in 2008, but a case involving somebody driving for work has yet to be put to the test.
Instead, incidents involving people driving for work have been prosecuted under health and safety legislation, while the Corporate Manslaughter Act has been successfully employed elsewhere, resulting in fines running into hundreds of thousands of pounds.
Philip Somarakis, a partner at Gordon Dadds Solicitors, told Fleet News that fleet operators had a legal duty to protect their drivers.
He said: “The larger the vehicle, the greater the potential to cause injury or damage if not controlled properly, the more emphasis on health and safety there needs to be.
“That’s why you’ve got so much legislation around weight, height and speed restrictions, along with the training and competence of people who drive heavy goods vehicles.
“Where there is this requirement for a higher standard of competence because of the type of vehicle, then that needs to be reflected in the skill and care of the employer who has to ensure that their drivers are safe, qualified and have the right attitude when they are out on the road.”
As far as Palmer’s employer is concerned, Somarakis says the police will want to investigate whether it was a work phone the driver was using, whether any of the messages were work related and what systems they had in place to check if he was exceeding his driver’s hours.
“The police will also want to establish whether his employer inspected his tachograph and what checks they employed around his fitness to drive,” he said.
“No doubt the police will be seeking a full explanation from Frys Logistics and at the end of their investigation will take advice on what charges, if any, to bring against the company and/or key individuals within that business.”
Whatever the outcome, Handley says the case once again highlights the issue of tired driving and its devastating consequences.
He concluded: “Research shows that more than 300 people a year are killed in fatigue-related crashes and it is increasingly likely that companies, and even individual managers, will face prosecution if they push employees to work excessive hours.”
To read Edward Handley’s blog on the case involving Robert Palmer, visit our blog section, where you will also find a blog from Alan Scott-Davies on the same subject.