Their driver was sent to a private house to bring back a customer's car and he left a courtesy car. When the customer's car, which was booked in for service, arrived at the garage, it was found to have four illegal tyres.
The question was, "If the driver was stopped, who would be liable?"
While the answer was, of course, the driver would be responsible, it raises an issue about employers and public liability in the event of a hidden or latent defect causing a mishap.
A delivery driver, whose licence is endorsed merely because he is driving another's property under command from his employer, might have a legitimate case to pursue his employer, if he could successfully argue that he was obligated to complete the journey, at pain of disciplinary action if he did not.
There must be many instances where a car is collected only to find that it is illegal once it is put on the ramp. Blown exhaust, illegal tyres, cut or rusted brake lines, failing constant velocity joints that could seize up the steering, all are normally encountered hazards in a motor workshop.
What if the condition of the collected car led to the death of the driver or a member of the public?
On Monday, 6th August 2007, The Corporate Manslaughter and Corporate Homicide Act came into force.
(The word “homicide” is used in Scotland, where they watch too many Perry Mason Shows on TV!). This new Act makes a Corporation or Partnership, or even a Trade Union or voluntary organization, liable to prosecution where gross negligence can be proven to have led to death.
It was prompted by a series of catastrophic management failures, which led to the Paddington rail disaster, the Herald of Free Enterprise sinking, the Southall and Hatfield rail crashes and a host of other, budget-induced cost cutting management decisions, which led to loss of life.
“Gross negligence” is a gross breach of the senior management’s statutory duty to take reasonable care of a person’s safety.
The act of negligence arises when a management decision or work practice, such a leaving the ferry doors open to save time closing them, causes death. To convict a company, the prosecution must prove that the failure came substantially from “senior management”, not the cabin boy. Senior managers are those who play a significant role in the daily management of the whole or a substantial part of the company's activities.
Over the last 40 years more than 40,000 people have died in accidents linked to commercial activity, while 1% of that number die each year still. Yet in the last forty years, just 34 companies were ever prosecuted for manslaughter or homicide and only seven were found guilty, largely because it was never possible to identify any individual with sufficient overall knowledge of the workings of their own company to find them culpable.
It is also estimated that over 1000 road deaths a year are commercially related.
#AM_ART_SPLIT# So how would one recommend dealing with our delivery driver and the risk to which he might be exposed?
As always in UK law, the test is one of reasonableness.
There used to be a man on the Clapham Omnibus whose judgment of all things was taken as the yardstick by which to measure reasonableness, but he seems to have got off at Tooting Bec and has not been seen since.
We have therefore to apply the test of a reasonable man, as we in modern times understand it, when approaching the problem.
It would be perfectly reasonable to instruct the driver to carry out a visual check before driving the customer car away.
He should do this preferably with the customer present. A simple checklist could be completed in the owner’s presence and signed by him. If the driver deems the car illegal, he can point out his misgivings, and ask the customer to take the car to the garage, as he is no longer prepared to take the risk.
Where no customer is available because the car was left on the drive, the driver should report the matter and return in the courtesy car.
Where a latent or hidden defect causes a fatal accident, the test will still be one of reasonableness, in that it would have to be shown that the risk of the event was reasonably foreseeable.
Thus, when a customer complains that their hands vibrate on the steering wheel, it would be reasonable to assume they are describing wheel balance problems, rather than the onset of old age.
It would then be a matter of judgment whether to bring the car in by road or on a low loader. Where a particular car is known to suffer steering wheel vibration two minutes before it breaks in half, it would probably look very bad if you still instructed your fatally injured driver to bring it in by road.
It would have to be accepted by all concerned that the delivery driver could not be expected to view the car with the eye of an expert, while one would also have to assume the relative ignorance of technical matters in the customer.
Thus, by completing a visual inspection, having the customer sign that inspection off (you can include bodywork damage noted at the time, as well, if necessary), you probably have done all that can be reasonably expected of you. If the driver then dies operating the car, the case will turn on the facts and no amount of advance preparation will be able to take account of that.