Risks arising from proposed solutions to lorry driver shortages

The UK Government has proposed a number of potential solutions to the issues arising due to the current driver shortages. These shortages are causing delays in the supply chain and the latest focus has been on shortages caused to fuel supplies. These fuel shortages are then causing yet further problems with the supply chain.

Here we focus on two of the proposed solutions and highlight some of the risks which might arise from hauliers adopting those proposals. The first of these proposals is the relaxation of drivers’ working hours. The second is the relaxation of rules in relation to the recruitment and training of drivers.

Drivers’ working hours

Drivers’ working hours are heavily regulated and restricted throughout the EU and in the UK. The rules are different between the two areas but the basic premise of restricted driving hours is seen as an essential safety feature. The primary concern is, of course, the safety of road users who may encounter HGVs.

However, the safety of the cargo is also a matter of considerable importance and, in the context of claims under the CMR, English courts have been asked to consider the question of drivers exceeding their working hours and accidents arising therefrom. Two cases provide an interesting example of the difficulty (and inconsistency) caused by accidents arising from drivers falling asleep at the wheel.

In Jones v Bencher [1986] the driver decided that he would prefer to spend the night at home and exceeded his statutory driving hours to get there. During this period of excessive driving, he fell asleep at the wheel and had an accident. Popplewell J considered that the driver was guilty of wilful misconduct.

However, in TNT Global SpA v Denfleet [2008] the driver also fell asleep at the wheel and suffered an accident. However, the Court of Appeal considered that, although the driver must have been negligent in failing to heed the warning signs that he was tired (perhaps even grossly negligent) he presumably assumed that he could beat the tiredness and continue to drive safely. As such, he lacked the “wilful” element which would invoke Article 29 of the CMR.

As drivers’ permitted hours are extended, more reliance is placed on the driver to judge whether they are sufficiently awake and alert to drive safely. The current shortages of drivers may cause employers to place more pressure on their drivers to work extended hours. If a driver takes the decision to drive when tired due to such pressure, there will be some interesting discussions along the lines of the cases above.

English courts may well take note of the current problems faced by the UK haulage industry. However, cases involving international haulage (of which, domestic UK haulage may form a part - see Article 34 CMR) may well be decided by courts in another jurisdiction (see Article 31 CMR). It would seem that many courts will often use statutory driving hours as a guide to what is reasonable in terms of a driver’s decision as to whether to continue driving or not. Where the driving hours within the UK differ from those in the EU, an EU court, for example, may consider that the UK’s increased hours are not a safe or reliable guide to driving hours. Indeed, drivers carrying international loads may be subject to EU rules on driving hours even when driving within the UK. The application of the different driving regulations and the differences thereunder may be confusing and result in an inconsistent approach regarding any claims presented.

Relaxed training and recruitment

It has also been proposed that training and recruitment requirements can be relaxed in order to speed up the process of encouraging new drivers into the industry. Whilst the need for further drivers is clear, it is important that the quality and ability of the drivers is maintained.

Driving is just one of the roles of a driver in the logistics industry. Drivers are frequently required to become involved in the loading, securing and discharging of cargo. These can be skilled jobs which can determine the safety of the load (in terms of the cargo and to other road users). The (often onerous) requirements within Article 8 of the CMR can, in many circumstances, only be performed by the driver and these can require proper training and experience.

Increasingly, carriers are being held liable for fraud committed by purported consignees of the cargo. Drivers are handing over consignments to parties committing theft by deception and then facing accusations that they have not carried out proper checks into the identity of the consignee before releasing the cargo. If drivers are required to undertake such investigations and ancillary roles, they require considerable training. If that training is not provided, hauliers potentially expose themselves to increased liabilities.

Logistics providers also need to consider their Service Agreements with customers and their liability insurance policies; these contracts will often contain requirements with regard to driver training and will seldom allow these training requirements to be relaxed simply because staffing levels are low. A breach of such a clause may give rise to considerable liability or substantially limit or exclude a recovery under a haulier’s insurance policy.

A trailer load of goods can have a considerable price tag and the road haulage industry has long been the target of crime. If training and recruitment policies are relaxed, that potentially opens up possibilities for organised criminals to target haulage firms who carry expensive cargo but have driver shortages. Both as a matter of English law (see, for example, Frans Maas (UK) Ltd v Samsung Electronics (UK) Ltd [2004]) and under the CMR (see Article 3) the carrier is likely to be liable for the actions of drivers whom they employ - and that extends to the criminal actions where goods have been entrusted to the safe keeping of a driver.

Comment

Whilst the UK Government may be encouraging hauliers to increase drivers’ hours and relax the recruitment and training of drivers, it is unlikely that this will result in a lessened liability regime for hauliers. Hauliers will still be liable for accidents which occur due to inexperienced or poorly trained drivers or due to drivers falling asleep at the wheel. Relaxation of recruitment and training also opens up possibilities for criminals to enter the supply chain.

Furthermore, where logistics contracts and insurance policies contain requirements in relation to recruitment and training, these contractual conditions need to be considered (and adhered to!) even if the government guidance on such matters may be relaxed.

Read other items in Marine Brief - November 2021

Related item: Driver shortages have implications for insurers