Truck maintenance: maintain concentration
Having the soundest maintenance regime is key to safe and efficient fleet operation. But how can an operator best manage maintenance contractors to ensure the correct standards are reached and what are the risks of non-compliance?
The maintenance provider might be an external provider, an internal resource, or a combination. However, from an O-licensing point of view, it does not matter: there must be satisfactory arrangements in place to ensure vehicles and trailers are kept fit and serviceable and - to quote IRTE - while “vehicle operators can subcontract their vehicle inspection, repair and maintenance, they cannot subcontract their responsibilities for vehicle road worthiness”.
A failure to manage and control internal or external maintenance providers properly adversely affects an O-licence in two ways:
. firstly, a poor test history and/or prohibitions generate follow-up DVSA inspection visits and the gateway into traffic commissioner (TC) hearings and either a) a public inquiry where revocation, suspension or curtailment can take place or b) a preliminary hearing that determines whether the matter should proceed to public inquiry;
. secondly, and perhaps less immediate and obvious, is that poor management of maintenance contractors can indirectly lead to difficulties in obtaining further additional licences or variations. If a licence increase is sought, an unsatisfactory roadside encounter and test history can slow down or stop the grant of an increased fleet size. In this sense, adverse maintenance events can be a time bomb.
Transport managers who fail to manage contractors properly despite their “continuous and effective” obligation also risk action being taken against their good repute and professional competence. The most recent draft revisions to the senior TCs’ statutory documents continue to emphasise the importance of the transport manager role and how they and operators will be expected to demonstrate continuing professional development, such as appropriate two-day refresher training evidenced at certain trigger points such as five-year licence renewals.
Operators and transport managers need to consider the consequences of failure to manage contractors properly. A very extreme example of mismanagement occurred in the multiple-fatality Bath tipper incident, where the contractor’s work was wholly inadequate over an extended period of time and totally unchecked by the operator.
Such cases are relatively rare and gross negligence manslaughter is only proved where the negligence is extreme and there has been the creation of obvious risks. Poor maintenance work will more commonly lead to roadside fixed penalties imposed on drivers, which feeds back to the TC, or prosecution by the DVSA/police for construction and use offences, all of which are notifiable and affect OCRS figures.
There are also draconian health and safety fines imposed following the change in sentencing guidelines in February 2016. It is now common for six- and seven figure fines to be imposed for non-fatal cases.
In this context, operators need to have proper arrangements in place for maintenance contractors who carry out work on site, as well as arrangements for employees. Every case is investigated individually by the HSE, but an external contractor working at the operator’s site can be regarded in law as being part of the operator’s undertaking where something goes wrong, meaning everyone can be prosecuted.
Any criminal prosecutions brought by the HSE can involve hefty costs orders and affect the good name of the business. Appointing a contractor needs to be carried out through a thorough due diligence procedure.
This must include meeting the contractor, inspecting facilities and information about annual test performance. The following questions should be asked: what qualifications do workshop staff have? Are they IRTE-qualified? Is it an IRTE-accredited workshop? Is there up-to-date knowledge?
Is there an understanding of the expectations of the TCs, for example regarding brake testing? Are there proper insurances in place? The operator must have a contract with every maintenance provider listed on the O-licence, but is the one contracted adequate?
A more detailed contract might be better so that there is a measuring stick and clarity in the event of any dispute. The operator may also wish to include a schedule of service standards and expectations, for example relating to test history and production of information and prompt paperwork.
Operators must demand from maintenance contractors prompt production of paperwork and information relating to inspections and test presentations. Contractors must also inform the operator of adverse and unusual events.
Operators should keep detailed records of communications and correspondence/telephone calls with maintenance providers. All records and documentation provided by maintenance providers must be inspected by the operator and must be complete and up to date.
Any failings need to be rigorously chased by the operator. Incomplete documentation may mean that the work was carried out but not recorded - or not carried out at all. At all times, the operator must expect the very highest standards of workmanship with an excellent test history and an absence of issues leading to prohibitions or test failures/PRS (pass with rectification at station).
The risk here is for the operator to allow the odd failure or mishap to go unmarked or unactioned. However, these own goals accumulate and lead to problems such as the reluctance of the TC to grant an O-licence increase.
All of the above depends on the operator and, crucially, the transport manager understanding what is expected and keeping up to date. After all, how can maintenance providers be managed if they do not know what is expected of them?
Numerous changes came into force in May 2018 relating to testing, vehicle inspections and roadside enforcement. A revised DVSA ‘Guide to maintaining Roadworthiness’ and revised inspection manuals were issued.
But how many operators processed all this material and checked their maintenance contractors were also aware and had discussions with them? It remains the case that countless maintenance providers are ignorant of the TCs’ expectations regarding brake testing, for example.
Every legal change, DVSA policy announcement or other relevant event should trigger the thought: how does this affect our maintenance regime and is our provider aware? By proper constant and proactive policing of maintenance providers - including those in-house - an O-licence can be preserved and criminal liability can be avoided. It also makes good business sense.
By Tim Ridyard
. Tim Ridyard is a partner and road transport regulatory lawyer at Ashtons Legal. Call 01284 732111 or email [email protected]
Risk assessments: playing it safe
A recent civil insurance case has demonstrated the importance of safe systems of work and delivery planning for hauliers.
Clearly, such systems are critically important for operators to fulfil their obligations under health and safety laws, but the case also demonstrates the financial benefits of having robust systems in place to allow companies to defend their position in the event of compensation claims being made. The case of Rhys Alan Williams versus (1) McMurrays Haulage Ltd (2) WM Morrison Supermarkets (2018) serves as a reminder to haulage companies to ensure not only that all parties effecting a delivery are aware of their responsibilities, but also that systems are in place to ensure the safety of all workers and customers in the haulage industry.
The claimant in this case was a senior employee of a well-known supermarket chain. He was part of a team responsible for, among other things, receiving deliveries of equipment at stores. On the day in question, he opened a gate to the yard of a supermarket, and an HGV driven by an employee of McMurrays Haulage drove in.
The claimant stood at the end of the gate, against a wall and shortly afterwards, the rear of the trailer on the truck collided with that wall, trapping his right arm and causing a severe crushing injury to his forearm and hand. The claimant was not wearing the hi-vis jacket he had been issued with, which he accepted in written evidence, and which he knew he should have been wearing. Throughout the incident he was talking on a mobile phone to a colleague.
The court made a detailed review of the training and procedures in place and it is evident that WM Morrison provided substantial evidence that it had training in place. The court accepted that the claimant was made aware of and properly trained in the fairly simple requirement that allowed him to do the job safely.
Further, WM Morrison could rely on him as a senior and intelligent employee to follow these requirements. It is also worth noting that the court felt that physical warning signs were not necessary to alert the claimant to the obvious risk, which in any event was one the claimant was well aware of from his training.
It was held that none of the alleged faults or acts of negligence on WM Morrison’s part were made out. There had been no breach of duty by WM Morrison in providing the claimant with a key to the yard and permitting him to use it to open gates and admit vehicles.
His training included the procedure for opening gates safely and the need to stand in a safe place when in the vicinity of moving vehicles. Furthermore, the court found that the primary and overwhelming cause of the accident was the negligence of the McMurrays Haulage driver in manoeuvring his vehicle in such a way that he caused it to intrude into the space in which he knew the claimant had been standing, having taken no steps to check, or ensure, that he had moved away from that space.
The extent to which the claimant in this case had contributed to the accident by standing in an obviously unsafe place, was not because of any fault in WM Morrison’s procedures or training, but because he failed to follow those procedures and training during circumstances that put him at risk. Given these findings, the case serves as a reminder to haulage companies that various steps are required when effecting deliveries to customers, not least to ensure their drivers know where pedestrians are.
WM Morrison was successful in its defence of this contribution claim because it had well-documented regimes in place. It is worth operators considering and reviewing what documents and training they have in place for effecting deliveries.
Operators should be asking themselves: are there risk assessments of regular delivery sites, and method statements about the steps to take at these sites? It is often impossible to produce relevant risk assessments for every site visited by drivers, but regular delivery sites can be considered and hauliers should also seek to have a robust reporting structure in place.
Drivers must be encouraged to report any site specific concerns or near-miss incidents to the transport manager or health and safety manager to allow operators the opportunity to consider any risk presented and how to manage that risk. Operators also need to ask whether their drivers are trained on dynamic risk assessments to help them identify potential hazards as they arrive at a new site to make a delivery.
It is important to remember that the delivery areas of retail sites can be fraught with hazards. While people are often focused on the obviously “risky” sites, such as construction sites or quarries, careful attention must also be paid to retail sites as well.
Also, those premises receiving the deliveries should not be complacent in thinking that their staff and delivery companies automatically know what they are doing. Incidents on retail sites are all too common because so often there are a number of pressures surrounding such deliveries that can lead to staff seeking to be helpful to get the delivery done quickly, but things can and do go wrong.
Therefore, having clear written safety procedures and effective communication between office staff and drivers, and also customers and drivers is imperative.
By Vikki Woodfine and Anne Sutcliffe
. Anne Sutcliffe is an insurance specialist at DWF LLP and Vikki Woodfine is head of road transport and logistics at law firm DWF LLP.