12th September 2007


 Issue No.  2007/23




An employer, who allowed an employee to drive for an excessive period of time, has recently been held primarily responsible for an accident caused by the driver falling asleep whilst driving the employer’s vehicle.
The driver lost control of his vehicle, crashed and sustained serious injuries.  At the time of the accident, he had been awake continuously for 19 hours and had complained of being tired during the journey to his manager who happened to be accompanying him. He had also been exchanging text messages on his mobile phone.
Initially the Court held that the employee’s failure to pay due attention through using his mobile phone caused the accident. Contributory negligence was assessed at 25% because he was not wearing a seat belt at the time.
On appeal it was held that on the balance of probabilities, the cause of the accident was the employee falling asleep. As his manager was with him, the employer knew he was tired (and presumably knew he was sending texts and not wearing a seat belt) and was therefore primarily responsible for the accident.
Contributory negligence was again examined in the light of the fact that the driver must take some additional responsibility for what happened because he had been aware that he was at risk of falling asleep. The overall degree of contributory negligence was assessed at 33%.

This case illustrates current thinking from enforcement and the courts regarding excessive car driving on business.  This is currently regulated via the general duty of care and requirement to assess significant risks imposed on employees under the “'74 Act” and management regulations.  We have for some time felt that specific regulations covering ‘car’ driving will at some point be upon us and now would be a good time to take a look at just how much driving you expect of your employees.

If you have any concerns about this do contact us for advice.




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