A lawyer specialising in motoring criminal law has warned the industry over the importance of driver training despite the exemption that allows a category B licence – a standard driving licence – to be used for construction and trade vehicles.
Speaking to the Road Safety Markings Association (RSMA) annual conference in February, Michael Balmer, a partner at Weightmans law firm, argued that proposals to remove the exemption ‘would potentially help to increase driving standards and safety’.
He also warned that changes in policing and the law had increased the risk of prosecution for drivers. ‘Category B driver licence holders, it is fair to say, won’t be aware of the risks of driving large road marking vehicles,’ he said.
‘You can see the inherent problems with the difference between driving a vehicle and a road marking lorry: specifications, stopping speeds, loaded and unloaded weights and the difference that will have, and the importance of maintenance on a lorry.
‘So the risk is a large one for individuals who drive these vehicles without effectively learning to drive them. The equivalent HGV driver would have gone through much more training. If I was prosecuting, for example, I would make sure the court was aware that this 15-tonne vehicle was being driven by someone who had nothing less than a driving licence. And I would expect the court to take that into account.’
Mr Balmer advised delegates: ‘You might want to consider drivers’ hours and breaks beyond those of the minimal legal requirements, the use of phones and of course driver training and refresher training.’
In the event of an incident, he added: ‘Ensure that you have a provision in place to allow drivers access to legal advice at the roadside in the aftermath of a collision. Where any collision occurs, in which the other person receives or requires medical attention, proceed under the assumption that the driver is being treated as a suspect for a potentially imprisonable offence and act accordingly.’
He also suggested that organisations should consider instructing lawyers to carry out an investigation of their risk, the results of which would be protected by legal privilege.
On the topic of telematics, increasingly used by large fleet owners, he advised such data could be seized by the police although questioned whether in practice they would make much use of it.
‘If the police and prosecution don’t take that evidence, the defence may well. It could assist the defence in a case or lead to a prosecution. On the balance of probabilities I think if it reduces accidents on the whole, it can only be a good thing.’
He went on to state that the risks are increasing in the modern legal system: ‘From recent experience, I can say that it is increasingly common that the police take the view that there is no such thing as an innocent accident anymore. They will start with the view that someone potentially is criminally culpable.’
Also, the courts appear to be 'increasingly and more commonly imposing large six-figure and seven-figure penalties in an effort to warn companies to shape up and ensure they meet health and safety obligations’.
And on 28 June 2022 a new offence of ‘Causing Serious Injury by Careless Driving’ came into UK law, under The Police Crime and Sentencing Act 2022, which could carry a maximum sentence of up to two years in prison. It applies to any incident taking place after 28 June of last.
The Health and Safety at Work Act states that a company owes a duty to keep its staff and non-employees safe - meaning the risk is not confined to the driver as senior managers and directors could also face criminal prosecution.
Financial penalties would be based on an assessment of a company’s culpability, risk and level of harm, and are linked to turnover, rather than profit.
A medium-sized firm with a turnover of £10m-£50m could face financial penalties of up to £4m in the most serious cases. Those fines could reach £10m for large companies with a turnover of £50m or more, Mr Balmer added.
‘The court will undertake a detailed means enquiry with the company and those accounts of limited and parent companies as well. A company that had a small turnover but was part of a group that turned over billions of pounds, would be treated as a very large company. It would be that entity that paid the fine, how the funds would be moved to meet that obligation is another matter.’
