Member Article

Six months on from the implementation of sections 20 and 21 of the Road Safety Act 2006, and occupational road safety remains a significant cause for concern for employers. The Act introduced two new offences of causing death by careless driving and causing death whilst unlicensed, disqualified or uninsured,

with offenders finding themselves facing up to five years’ imprisonment for what could be a momentary lapse of concentration. These new sections came into force on 18 August 2008, and sit alongside existing offences of causing death by dangerous driving, and causing death by careless driving when under the influence of drink or drugs (sections 1 and 3A of the RTA 1988). Whilst the Road Safety Act introduces new offences for the driver of the vehicle, employers should be alerted to the risks of on-the-road work activities. Whenever there is a fatality on the road, the police now investigate the fatal accident with a view to placing responsibility on either the driver or a company which may be considered partially responsible for the accident.

Employers will need to warn drivers against such distractions, and policies will need to deal with the use of mobile phones, eating and drinking whilst driving, the use of satellite navigation systems and driving whilst applying makeup. All these activities are likely to be considered by the prosecuting authority as avoidable distractions. When determining the level of seriousness of the offence, the culpability of the offender is paramount. Sentencing guidelines state that driving whilst using a handheld mobile phone is considered

seriously culpable behaviour of the offender. Furthermore, driving whilst the driver’s attention is avoidably distracted, for example by reading or adjusting the controls of electronic equipment such as a radio, hands-free mobile phone or satellite navigation equipment, is also considered as seriously culpable behaviour of the offender. The Sentencing Guidelines Council has made a distinction between ordinary avoidable distractions and gross avoidable distractions which divert the attention of the driver for a longer period of ime. Using a handheld mobile phone when driving is, in itself, an unlawful act. The fact that an offender was avoidably distracted by using a handheld mobile phone when causing a death by driving offence will always make the offence more serious. Reading or composing text messages over a period of time will be a gross avoidable distraction and is likely to result in an offence of causing death by dangerous driving being at the highest level of seriousness. Driving when knowingly deprived of adequate sleep or rest, especially where commercial concerns had a bearing on the commission of the offence are also taken into account when considering the seriousness of the culpability of the offender. Managing work related road safety is a difficult

task. Systems need to be underpinned by an overall health and safety culture, and this needs to include a corporate road safety culture which seeks to reinforce positive attitudes to road safety. Road safety is constantly under review, and Europe is currently considering a proposed Directive on cross border enforcement in the field of road safety. The proposal is not seeking to harmonise road traffic rules throughout the EU, nor the penalties which are imposed or such offences, but is seeking to address the issue of non-resident drivers facing financial penalties for infringements committed in other member states.

If you have any queries about your responsibilities regarding occupational road safety, please get in touch with a member of the Regulatory Team.