Interim relaxation of drivers' hours rules risk exposing employers to financial liabilities
The Government has recently indicated that they are intending to allow lorry drivers to work longer hours in an effort to mitigate against food shortages. Mr Shapps announced on Wednesday that he was introducing a temporary extension to drivers’ hours rules while the haulage industry grapples with an HGV driver shortage.
He said: “We’re aware of a shortage of HGV drivers, so I’m announcing a [temporary] extension of drivers’ hours rules from Monday 12 July, giving flexibility to drivers and operators to make slightly longer journeys. We’ve ramped up the number of driving tests available and will consider other measures”.
This decision has been criticised by HGV drivers on the basis that it will be unsafe and for fear that they will be blamed for road traffic accidents.
In Eyres – v - Atkinsons Kitchens and Bedrooms Limited [2007] EWCA Civ 365, the Court of Appeal allowed an appeal by an employee who had been awake for 19 hours. The Court found that there had been nothing wrong with his driving. There is no evidence of deceleration indicating that he had taken his foot off the accelerator through falling asleep. He had been receiving and sending text messages when driving. He took his eyes off the road shortly and then braked sharply in an overreaction to brake lights seen ahead. He braked so sharply so as to cause smoke to come from the tyres. He subsequently lost control of the vehicle and suffered from a spinal cord injury. The Court of Appeal found that he had fallen asleep. The driver was found to have been 33% contributory negligence for the incident for (1) failure to wear a seatbelt; and (2) failing to take action when he knew that he was at risk of falling asleep. However, the Court of Appeal found that the employer was 66.6% liable because they did nothing to guard against the very risk of injury from which he ought to have been saved from.
David Withers, a Partner of Irwin Mitchell LLP, specialising in serious injury litigation said: “The Government’s announcement is concerning. We recognise that steps need to be taken to mitigate the risk of food shortages across the country. However, there are more proportionate and sensible steps which could be taken. To take the intended action, the Government is exposing innocent road users and HGV drivers to materially higher risks of serious injury or death.
Although the Government can relax the governance around working hours, employers will still owe their employees a duty of care. If employers force employees to work excessive hours, resulting in avoidable accidents, they are likely to face liabilities arising for personal injury. The intended relaxation by the Government of the total hours that an HGV driver can be on the road does not provide for an indemnity against increased employers’ liability risks, nor does it negate the fundamental duty of take reasonable steps so as to ensure that employees are safe at work.
David Withers is a Partner of Irwin Mitchell LLP. He leads a team specialising in serious injury cases. He is also the secretary for the Association of Brain Injury Lawyers’ Brain Injury Special Interest Group.
The government is to relax rules this month for how long lorry drivers can work, as a temporary fix for a severe shortage of qualified heavy goods vehicle (HGV) operators.”
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