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Driver defect reporting - nil defecting - Tim Ridyard

  • 06 March 2007
  • By RidyardT

When operators apply for an operator licence they sign up for what used to be called 'the 7 pomises' but which on the new re-vamped applications forms might be called the 10 Commandments! - in short undertakings are signed for including those to make "proper arrangements" so that vehicles and trailers, including hired ones, are kept in a fit and serviceable condition and that drivers report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects are recorded in writing; moreover, records have to be kept for 15 months of all driver reports which record defects, all safety inspections, routine maintenance and repairs to vehicles and that these are made available on request. The reality is that there is no formal requirement that an operator must keep records of their nil defect reporting system and some operators choose only to record defects when they appear, consigning these to writing - they can adopt this 'slimline' version without necessarily breaching any undertaking but they remain horribly exposed in the event of any maintenance-related Magistrates' Court proceedings or in public inquiries. In all the more successful Magistrates' Court cases I have dealt with drivers who have been using a nil defect reporting system have fared best - they can state in Court that they proactively carry out nil defect reporting and can prove this through production of their defect-free defect report. The prosecution can find it hard to gainsay the nil defect sheet. Whilst there is no statutory or other mandatory obligation to adopt a nil defect reporting system it is better and gives a veil of protection. Without such a system a prosecutor can always say to an operator/driver "you say you did the checks and there were no defects but you have no proof of this" . A nil defect reporting system comes into its own in situations such as loose wheel nut or wheel loss cases: in a case I am currently dealing with an immediate prohibition was imposed by VOSA for a loose wheel nut where the driver had carried out a nil defect report at the start of his working day and religiously every day previously. The driver could not possibly have known that the wheel nut was slightly loose and there was no tell-tale sign of rust spray. Even if the prohibition is correctly imposed and matters are taken further by VOSA the bottom line is that it can be shown that a robust system was in place and the problem arose despite the system not because of it - but the argument is only really effective with the back-up paperwork. Tim Ridyard is a partner and road transport lawyer at Barker Gotelee Solicitors 01473-611211