The field of vision around most lorries has improved dramatically in recent years, mainly thanks to the introduction of London’s Direct Vision Standard (DVS), but as yet nothing completely foolproof has come along. Cyclists continue to be hit, and operators continue to find themselves on the end of phone calls nobody wants to receive. CM talked to two people who are regularly professionally involved in incidents like this, to find out what operators should do in such circumstances.
Inspector Rik Wenham is the lead officer for the Metropolitan Police’s Commercial Vehicle Unit (CVU). Charlotte Le Maire, meanwhile, is a specialist criminal and road regulatory lawyer and barrister, and founding partner at LMP Legal.
“What to do if your driver is unlucky enough to be involved in a serious injury or fatal collision is something we’re working on at the moment, with a bolt-on to our toolbox talk,” Wenham tells us. “Because when we ask transport managers, they sometimes really don’t know.” The answer begins before the vehicle leaves the yard. “It’s things like having an emergency actions pack in every cab that tells drivers who to call, which should be somebody at the company.”
“The first thing is making sure your driver knows what to do,” Le Maire agrees. “You’re not going to know about an incident straightaway unless your driver has a process to follow. The police will be on the scene really quickly, they’ll confiscate your driver’s phone, and they’re going to impound your vehicle,” she continues. “You’re going to lose all control and insight into the scenario.” She also believes all drivers should carry a number that immediately connects them to a lawyer, which they can pass to the police to ring if they don’t get the chance themselves.
Next, someone needs to get the right balls rolling at the company end – and fast. “It’s driver welfare,” Wenham says. “So where is that driver? How far away from base? Because the chances are, if it’s a serious injury or fatal, we’re going to be impounding that lorry for a forensic examination, so they’ll need a way to get back. I would also urge every company to send someone to support your driver.
“Then it’s legal advice, which the driver needs to be made very clear about,” Wenham tells us. That advice is very simple, although it may surprise you. “We will ask you four questions the Road Traffic Act says you must answer: your name, address, date of birth, and were you driving the vehicle at the time of the collision?” he says. “Then stop talking. Really.”
“There are only two things drivers absolutely have to say to police at the scene of an accident: your personal details – so name, address, date of birth, and which vehicle you’re driving,” Le Maire echoes. “After that, you should be saying you’re not able to give an account at that time.” While the Met’s CVU, under Wenham, will do its best not to allow drivers to speak, other forces have different policies. “If the police are asking the driver to ‘tell me briefly what happened’, they should be saying ‘I will cooperate, but down at the station as soon as my lawyer arrives’”, Le Maire advises.
The reasoning behind this is well established. “If a driver talks straightaway, the account they give may not be accurate, because they’ll be guessing,” she explains. “They’ll be saying all sorts of things because they’re in panic mode – even things that could inadvertently incriminate you as an operator, personally.” Innocent assertions like being in a hurry to make a booking time, or get back for a doctor’s appointment, or being paid a drop bonus, could set the ball rolling towards a corporate manslaughter charge for a director or manager
“The adrenalin will make you want to tell me everything, and the brain will see things and make things up that didn’t happen,” Wenham echoes. “It’s called perceptual distortion, and has been studied in trainee firearms officers. The brain will make up what it thinks you want to hear.” It’s another area Wenham and his team having been putting a lot of work into recently. “We’ve been talking a lot to transport manager conferences and legal companies who are really surprised that our advice – as the police – is to stop talking.”
As a driver, don’t be afraid that refusing to talk will be seen as ‘clamming up’, or that asking for a lawyer will make you look guilty, either at the roadside or when invited into the station for an interview. “You’re entitled to protection, and a lawyer will guide you,” Wenham assures us. “You might think that the right thing to do is to talk, but you still might be confusing yourself.” Remember that as a driver you’ll be under caution, but not under arrest, so you’ll be free to go. “It’s really important to understand that you are entitled to legal advice, even at the roadside,” Wenham reiterates. “A lawyer will generally take you through everything in slow time, then give us a pre-prepared statement as to what happened.”
The difficult part can be finding the right kind of legal advice at short notice, especially outside office hours. “Many operators think they’re covered for these things by their insurer having a 24/7 helpline, but that will often be pretty much just a claims line,” Le Maire cautions. “So they might be offered a hire car, if they’re lucky, but they certainly won’t be connected to a criminal lawyer quickly enough.”
“Quickly enough” really does mean at the side of the road, which is why it’s so vital that companies plan ahead. “Those first few minutes can be so damaging, for drivers and for operators,” Le Maire warns. “It may look like something is clear-cut, but we pore over it for months, forensically, and only then can we begin to piece it all back together.” LMP Legal has cases relating to collisions back in 2022 that are only finally going to trial in 2024. “Sometimes it can take well over 12 months for police to even decide whether to charge somebody.”
Le Maire also advises companies to have a ‘crisis response’ email group already set up and ready to activate, should it be needed. “Your solicitor can then ping that at 2am if an incident occurs, to say this has happened, we’re off out to represent the driver, we’ll update you when we can at the police station,” she says. “It should include three or four people at most, say a director of the business, the transport and health and safety managers. It should be kept really tight, and it should be marked ‘legally privileged’.”
For those who don’t already have something in place, getting a lawyer can be something of a lottery. “The problem is that the standard of legal aid firms is so variable,” Le Maire explains. “It’s chronically underfunded, so the talent has left the area.” Realistically, if an operator doesn’t have provision in place in advance, the best they can do is look up local criminal solicitors. “That or hope that the driver has the presence of mind to say they want a duty solicitor once they get to the police station.”
All of which brings us back to the changes Inspector Wenham has made in his force’s area, and why the most important thing is for someone from the operator to attend the scene of the accident and support its employee. “I’m really keen that we get a friendly face with that driver as soon as possible,” he tells us.” Because all the while they’re sitting in our van, drinking our grotty tea or coffee, they’re still in the middle of that scene. When we ring the operator, we’ll generally let the driver speak to the transport manager, or whoever, and find out which way they’re coming in and what they’re driving,” he continues. “Then we can send someone out to get them.”
He admits there are some horror stories out there about how some forces deal with these situations, and even some about other parts of the Met, but they just throw fuel on this Inspector’s campaigning and educating fire. “We’re out there briefing drivers, and giving toolbox talks, and drivers are genuinely surprised when we say ‘You answer these four questions then stop talking’, Wenham says. “But at the scene, we don’t want to hear anything you’ve got to say. Really. Just don’t talk to us anymore.”
