Standing alone, even the best workplace safety procedures are useless. To be effective they must be applied, and the history behind a tragedy three years ago is a clear reminder of that.
On 3 October 2015 a double-decker bus crashed into a superstore in Coventry, killing a pedestrian and one of its passengers and injuring several others, two of them seriously.
Operated by Midland Red (South) Ltd (“Midland Red”), the bus was being driven by its then employee, 77 year-old Kailash Chander, who had bypassed a key safety feature, pressed the accelerator instead of the brake and then lost control.
Mr Chander was ruled unfit to face trial due to the onset of dementia and was given a two year supervision order involving social and psychiatric care.
Midland Red pleaded guilty to two breaches of the employer duties in the Health and Safety at Work Act 1974, in that they failed:
- Under section 2 (1) “ … to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all [their] employees; and
- Under section 3 (1) “ … to conduct [their] undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in [their] employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
Midland Red is part of a group whose latest accounts show turnover and operating profit respectively as £3.2 billion and £144 million. They were fined £2,335,000, but reputational and other losses are a lot harder to evaluate.
Midland Red’s own systems had plainly shown that Mr Chander’s driving had long been worsening, but no effective action was taken. For example:
- He was involved in four minor collisions between 2012 and 2014, and an on-board monitoring system had raised many alerts
- After a large number of formal letters to him about this, Midland Red eventually triggered a disciplinary process which included his driving being discreetly observed. This resulted in extra training, and (in response to concern about increased hours)
- The instructor advised Mr Chander to decline unless he felt well enough, also noting that excessive hours should be avoided as fatigue impaired his driving
- During a secondment in September 2015 his home depot failed to warn about his capabilities or the need for him to avoid excess hours. He averaged 72 a week, and there were passenger complaints
- Just two days beforehand a depot manager had again highlighted problems but no action was taken and on the day itself another driver commented on how tired he looked
The Judge found that Midland Red:
- Plainly knew that Mr Chander was working long hours and that the quality of his driving was deteriorating
- Ignored the advice of the training instructor
- Failed to make sure their drivers were fit to drive at all times
Their failings were a significant cause of the crash, and if they had followed their own policies or the advice of the instructor Mr Chander would not have been driving on that (his sixth consecutive) day.
While not in breach as regards working hours, Midland Red accepted that failure to apply their own detailed policies on driver supervision meant that warning signs were unheeded and insufficient action was taken.
After a full and priority review, several key changes had been made, resulting in a more robust regime which included increased checks, additional training, better operational communication and more rigorous control of hours.
The standout points here were Mr Chander’s age, his working hours and Midland Red’s failure to detect his unfitness to drive or to do something about it. Surely they did detect his unfitness and simply failed to act appropriately.
It has been suggested that the case might also present wider issues in terms of safety, driving age and capability and employment law anti-discrimination provisions, and (at least as to hours) there has been some comparison with different provisions applicable to HGVs.
However, all such are policy matters which may influence how rules are cast and perhaps later changed. It must always be remembered that, wherever the boundaries fall, a body that either lacks or fails to apply a suitable system to track performance and detect and deal with potential breach is always at risk of casualty, loss and public sanction.
In view of this recent reminder, owners and operators might like to review their various safety and other regulatory procedures, to ensure that all are compliant, effective and always verifiably enforced.
If you would like to know more about this matter, please speak to your contact at Plexus Law:
Tim Short, Partner
T: 0161 2457 9o8 | M: 07920 582 480 | E: firstname.lastname@example.org
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