Occupational Road Risk & Corporate Manslaughter
An insurance company has released the results of a recent study, warning that many businesses with company vans are at risk of prosecution in the event of an accident, because they are unaware of the requirements of the Corporate Manslaughter and Corporate Homicide Act 2007. It illustrates the larger issue of how occupational road risk relates to corporate manslaughter legislation.
The study was carried out by the AXA Business Insurance, five years on from the introduction of the 2007 Act, and concluded that many businesses with company vans are “not following the most basic of steps” to protect themselves against potential prosecution. The Act enables the criminal prosecution of a private company if the way in which that company’s activities are organised or conducted causes someone’s death.
Estimates suggest that a third of all traffic accidents in the UK involve someone who is at work at the time and may account for more than 20 fatalities a week.
Yet the study from AXA suggested that among 300 businesses with vans, nearly half (45%) are totally unaware of the term “corporate manslaughter”.
As well as a general lack of awareness, the research from AXA revealed three main areas of concern in the way businesses manage their vans, namely:
- Poor administration in relation to the paperwork for drivers and vehicles such as of drivers’ licences, van MOTs and insurance details
- Unchecked damage to van bodywork and windscreens, including minor dents, but also other more serious areas of damage
- A casual attitude to core maintenance required to keep vehicles safe, for example with regard to servicing of vehicles and other checks.
Commenting on the survey, Darrell Sansom, Managing Director at AXA Business Insurance said, “Corporate manslaughter is a very serious charge that carries an unlimited fine. While the number of businesses who are simply unaware of its existence is alarming, our research shows that negligence is apparent among those who are both aware and unaware. We want to warn businesses that keeping on top of relevant HSE legislation is vital to avoid leaving themselves exposed.”
When the Corporate Manslaughter and Corporate Homicide Act 2007 came into force there was a strong response by the fleet management industry, who felt that the new legislation had wide ranging implications.
However there have only been a small number of successful prosecutions under the Act, none of which relate to driving, although there are a large number of cases that have either been settled before appearing in court or waiting further action by the Crown Prosecution Service.
In order to prove a charge of gross negligence manslaughter, the following elements must be present:
- The accused must owe a duty of care to the victim. The ordinary principles of the law of negligence will apply in ascertaining whether such a duty exists.
- The accused must have breached that duty. This could be neglect of a positive duty arising from the nature of his occupation.
- The breach must have caused the death of the victim. This is a question of fact that the jury has to decide.
- The breach must be characterised as gross negligence or recklessness.
The first point would be straightforward to demonstrate in the relationship between employer and employee but harder to do so should a member of the public have been killed e.g. if an employed driver cause the death of another road user. The risk must also have been reasonably foreseeable.
The second point would largely rely on the circumstances of the incident; if the accident is pure circumstance when using the road or is down to the employee’s own actions then gross negligence manslaughter will likely not apply.
The third point would be especially difficult to prove in the event of a road traffic accident, given that the circumstances of road travel are partly beyond the control of the employer e.g. traffic, roadworks, other road users and state of road. Issues such as driver fatigue and state of vehicle may be relevant, especially if the driver has been directed by the organisation to work and drive long hours. Fatigue could be an issue beyond occupational driving – if the employee has insufficient rest due to work which results in an accident due to fatigue then prosecutors may argue that the organisation is liable.
The last point is largely down to the organisation’s safety culture. A one-off lapse of judgement or an employee failing to carry out a task would likely not result in a successful demonstration of corporate manslaughter. Instead prosecutors would be looking for evidence of a reckless indifference to an obvious risk. Again driver fatigue or poorly maintained vehicles could be significant issues.
For further information on corporate manslaughter/homicide see HSE’s site www.hse.gov.uk/corpmanslaughter/.