"From a legal point of view 2008 has been a very “interesting” year for UK businesses and their insurers, and whilst new challenges have undoubtedly arisen, there were some notable developments. Summary of these developments by QBE - the leading global insurer

1. EMPLOYERS DRIVEN INTO ACTION
QBE ISSUES FORUM NOVEMBER 2008

2. INTRODUCTION
EMPLOYERS DRIVEN INTO ACTION
“It has been estimated that up to a third of all road traffic accidents involve
somebody who is at work at the time. This may account for over 20 fatalities
and 250 serious injuries every week. Some employers believe, incorrectly,
that provided they comply with certain road traffic law requirements... that is
enough to ensure the safety of their employees, and others, when they are
on the road. However, health and safety law applies to on-the-road work
activities as to all work activities and the risks should be effectively managed
within a health and safety management system”.
Opening statement from HSE Guidance INDG382 Driving for Work.
Driving is an essential part of the operations of virtually every organisation in the UK today.
With growing volumes of traffic on our roads, driving is statistically the most hazardous activity
undertaken by most organisations’ employees, and hence the number one workplace-fatality risk.
In this Issues Forum, we review legal and regulatory developments affecting occupational road
risk, for example recent relevant case law and corporate manslaughter legislation. In examining
the business case for a risk-based management approach to this increasingly important issue, we
highlight some of the key hazards, risks, and control methodologies employers should consider.
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EMPLOYERS DRIVEN INTO ACTION NOVEMBER 2008

3. ARE EMPLOYERS TAKING
A BACK SEAT?
Until very recently health and safety
professionals have often neglected the
risk of road traffic accidents (RTAs)
involving ‘at work’ employees, seeing
it as an issue for fleet managers. Such
attitudes are reflected in the absence of
specific health and safety legislation and
the limited scope of enforcement action
taken against employers.
Because the Reporting of Injuries,
Diseases and Dangerous Occurrences
Regulations (RIDDOR) 1995 does not
specifically apply to most types of work-
A CHANGE OF DIRECTION he had fallen asleep whilst driving as
related RTAs, they tend to be statistically
a result of working unreasonable hours
under-recorded. Few organisations The tide has recently begun to turn, and
with insufficient rest, in breach of the
document and monitor them like other we are now seeing a growing debate
Working Time Regulations 1998. His
workplace accidents, and they rarely over the issue of employers’ responsibility
case initially failed when the High Court
appear among risk management or for work-related RTAs. Two high-profile
found that the accident was more likely
health and safety key performance court cases have helped to focus minds
on the issue of driver fatigue: to have resulted from the use of a mobile
indicators (KPIs).
phone. However the Court of Appeal
The Health and Safety Executive (HSE) R v Roy Bowles Transport subsequently held that on the balance of
and the Department for Transport (DfT) (1999) probabilities the claimant had indeed fallen
published guidance on managing asleep at the wheel. His damages were
Two directors were convicted of
occupational road risk in 2003. Despite reduced by a third in recognition of his
manslaughter after an employee fell
significant lobbying from road safety failure to wear a seatbelt or to realise that
asleep whilst driving a lorry on the M25,
groups, however, the HSE has not since he was tired and at risk of falling asleep.
causing a multi-vehicle collision in which
pursued the issue with any great vigour.
two people died. The driver was jailed for The inference is that employers may
Consequently, other than where large two and a half years for the offence of be considered negligent in respect of
vehicles have been involved, neither causing death by dangerous driving employees falling asleep at the wheel
employers nor the enforcing authorities under the Road Traffic Act. Both directors where they have failed to carry out a
have been strongly motivated to look were given suspended sentences when risk assessment, to put appropriate
into whether health and safety the court found they had knowingly
systems in place (e.g. for switching
management failures may have allowed drivers to work long hours.
drivers), and to ensure such provisions
contributed to ‘at work’ RTAs.
Michael Eyres v Atkinsons are put into practice.
It is perhaps not altogether surprising, Kitchens Ltd (2007) These decisions have far-reaching
then, that few organisations consider
The claimant in this case lost control implications for both civil and criminal
work-related road safety a priority.
of his van and sustained serious spinal law. They are likely to be followed in
injuries that left him tetraplegic. His cases where employees are seen to
managing director was asleep in the be working long hours leading to a
passenger seat at the time of the foreseeably increased risk of injury,
accident. The claimant contended that whether at the wheel or otherwise.

4. The courts will, of course, consider
relevant legislation and guidance in
determining whether an organisation has
fulfilled its duty of care to the standards
that could reasonably be expected in the
circumstances. The HSE and DfT have
both emphasised that health and safety
laws apply to on-the-road work activities.
Employers must take steps to assess
the associated risks, use all reasonably
practicable measures to make journeys
safe, and ensure their employees are fit
and competent to drive safely and that
their vehicles are fit for purpose and
maintained in a safe condition.
THE BUSINESS CASE
The benefits of properly managing
an organisation’s vehicles and drivers
CORPORATE can be considerable, extending well
MANSLAUGHTER AND beyond the health and safety and social
CORPORATE HOMICIDE consequences of serious road accidents.
From a commercial perspective, better
The Corporate Manslaughter and control over fleets and drivers often results
Corporate Homicide Act 2007, which in improvements in wear and tear, fuel
came into force from April 2008, aims to consumption, insurance premiums, legal
hold companies and managers to proper fees and claims costs, to name but a few.
account by making it easier to prosecute
when their gross negligence leads to DRIVING COMMITMENT
death. The new offence of Corporate QBE encourages and supports
Manslaughter (Corporate Homicide in organisations who develop their own
Scotland) is targeted at collective bespoke business case arguments for
corporate responsibility and does not action, i.e. moral, legal and financial.
apply to individuals. However, the Addressing the challenge of
options of prosecuting individuals for occupational road risk requires
manslaughter or under existing health commitment from the top down and
and safety legislation remain, and may clearly defined responsibilities. Also
indeed, be more widely used in the future. essential is an integrated organisational
It seems clear that we will see a greater support structure and management
incidence of health and safety and both system that allows cooperation across
individual and corporate manslaughter all departments with some responsibility
prosecutions in relation to work-related for work-related road safety. In other
road deaths in future. Where a gross words, functions such as risk
breach of duty of care is held to have management, fleet, insurance, training,
occurred, organisations and/or their and health and safety must operate
senior managers are now likely to be outside their traditional silos to pursue a
found guilty. joined-up strategy.
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EMPLOYERS DRIVEN INTO ACTION NOVEMBER 2008

5. A RISK MANAGEMENT functions, e.g. reducing the frequency The process is essentially no different
APPROACH and cost of accidents and claims, from that relating to any other work
making fuel and vehicle efficiency activity, as shown below:
A one-size-fits-all approach will clearly savings, improving absence and
not work when it comes to managing attendance levels, or even reducing
occupational road risk. The first step the organisation’s carbon footprint! Identify significant
is to set company policy and formulate hazards and those who
The next step is to identify each point
a risk management strategy that defines
at which the organisation’s operations may be at risk
roles, responsibilities and timelines for
create an exposure to occupational
action. This strategy should incorporate road risk. Having done this, it becomes
the aims and objectives of the policy possible to consider, at a very strategic
or mission statement and include level, the risk-based arguments for
realistic and measurable KPIs. These eliminating, substituting, reducing
need not necessarily all be safety related, or controlling these exposures. The Assess the likelihood and
but could include aspirations of residual risks should then be assessed potential severity of injury
stakeholders within other business and documented. and loss
Determine and implement
control measures to
reduce risks as far as
reasonably practicable and
economically viable
Monitor and review the
effectiveness of policies,
systems and controls at
appropriate intervals
With the ever-growing potential for
civil claims and criminal enforcement,
employers and senior managers need
to demonstrate that the systems they
have in place are effectively managed,
enforced, in line with best practice, and
commensurate with the level of risk.

6. IDENTIFICATION OF EVALUATING RISK
HAZARD AND RISK Once higher order controls have been exhausted, there are three main areas
The need for driving at work can arise in to consider in evaluating residual work-related road risks:
a number of different ways: from one or
two employees using their own cars on
ad-hoc company business, to major The The The
logistics firms operating huge fleets.
Employees particularly at risk include
Driver Vehicle Journey
young and newly qualified drivers, drivers
of large or specialist vehicles, those
driving long distances, and those with The driver of them and have the necessary
complex or difficult routes. skills and expertise to meet these
Common sense has a major role to play
When an organisation is analysing expectations. Such records will become
when evaluating drivers’ competence
accident frequency and severity vitally important should future civil or
and likely performance on the road. For
and benchmarking against similar criminal proceedings involve allegations
example, all motor insurance proposal
organisations, fleet managers, motor of insufficient training or enforcement.
forms ask:
insurers and brokers can all provide Training requirements vary widely,
• Does the driver hold a valid licence for
valuable data. Identifying systemic and the relevant class of vehicle? and off-the-shelf training packages are
root-cause failings from accident and unlikely to provide a complete solution.
claims investigations is also important. • What driving experience do they have? Employers with a significant driver
Insurers and brokers of larger fleets population should consider creating
• Do they have any history of speeding
will often be willing to facilitate such training matrices detailing the specific
or other traffic law infringements?
claims reviews. requirements that apply to their drivers
• What is their historical accident and vehicles. A bespoke training
Although not specifically required by
experience? programme can then be developed –
RIDDOR, recording and monitoring
vehicle accident and near miss either in house or working with a suitable
The answers to these questions will
frequency can also help to highlight specialist provider.
help determine what level of risk a
trends and hot spots, e.g. vulnerable driver poses. Though specialist risk For most organisations, however, some
or accident-prone drivers, accident black assessment software is available, an basic induction training covering the law,
spots, and susceptible vehicle types. organisation must ultimately rely on routine safety checks, maintenance
Consulting with drivers themselves its own judgement as to whether a arrangements, emergency procedures
captures their first-hand practical particular driver is low or high risk. and the organisation’s driving safety rules
experience and helps make them provides a useful starting point.
Clearly, drivers should be made aware of
more receptive to reporting adverse
company policies and systems of work This could usefully be supplemented by
occurrences and adopting future
on road safety. Employers should be able a driver’s handbook outlining company
changes in policies and procedures.
to provide documentary evidence that policies and providing general advice
It is also important to review any employees understand what is expected and information on road safety.
case law and proposed legislation
that may affect claims or criminal
law enforcement, i.e. changes in the
courts’ interpretation of the minimum
standard of care required where
work-related driving is concerned.
6
EMPLOYERS DRIVEN INTO ACTION NOVEMBER 2008

7. (including headlamp beam adjustment
to compensate for different loads) and
how to adjust head restraints to reduce
the risk of whiplash.
There should also be a robust reporting
mechanism in place through which
drivers can notify managers both of
near misses and of any vehicles in a
potentially unsafe condition. Employers
must then close the loop by taking and
documenting appropriate action.
Satellite navigation systems equipped
with helpful safety and warning features
can also play a valuable role, particularly
where routes are variable. Such
equipment can, however, prove distracting
The vehicle Employers often fail to give proper or lead to complacency – risks which also
consideration to privately owned require consideration. Drivers should
The Provision and Use of Work
vehicles, but it is important to ensure always be trained in the safe use and
Equipment Regulations 1998 (PUWER)
that both driver and vehicle are insured the limitations of any such equipment.
require employers to prevent or control
for business use and that the latter has
risks to their employees’ health and The journey
a valid MOT certificate.
safety from equipment – motor vehicles
included – used at work. Lifting Route planning should form part of
Policy documents and training should
equipment is also subject to specific the risk assessment. Motorways, for
cover general maintenance, servicing,
requirements under the Lifting example, are statistically safer than
and repair arrangements to at least with
Operations and Lifting Equipment minor roads. Depending on vehicle type,
the same standard as the
Regulations 1998. planning should also take account of
manufacturers’ instructions. Driver
special hazards such as peak traffic
The starting point here is to consider training should cover basic safety
flows, bridges, narrow roads and driving
whether vehicles are fit for the purpose checks – potentially supplemented by a
in town.
for which they are used. Fleet, system of pre-use checks and periodic
purchasing, and health and safety ongoing checks. This might, for To reduce sleep-related accidents, work
departments should all take account of example, cover tyres, lights, wiper schedules and shifts should be aligned as
risk-based criteria when sourcing new or blades and safety equipment such as far as possible with natural sleep patterns.
replacement vehicles. It may even prove seatbelts and head restraints. Drivers It is also important to encourage a culture
cost-effective to lease or hire vehicles should also have access to information in which employees feel able to pull over
with maintenance and repair outsourced on issues such as recommended tyre if necessary, regardless of delivery or
to a vetted supplier. pressures, maximum load weights operational demands.

8. CONTROL MEASURES
There are many ways of reducing occupational driving risk. A common mistake is to
focus primarily on lower order controls affecting vehicle and driver safety. The first
priority should be higher order controls, along the lines of the principles endorsed in
Schedule 1 of the Management of Health and Safety at Work Regulations:
• Consider outsourcing driving • Introduce either blanket or risk-based
operations training whereby all drivers or, if budget
constraints preclude this, all high-risk
• Eliminate or minimise driving risk
drivers (including those using private
by encouraging telephony and
videoconferencing vehicles driven on company business)
undertake driver-training that is
• Encourage safer forms of travel specifically tailored to the organisation’s
such as air and rail and the individual’s vehicle use
• Ensure company car policies do • Develop a drivers’ handbook to include
not encourage employees to drive, company policies and systems of work,
rather than seek safer alternative forms stressing adherence to the Highway
of travel, or to select inappropriate Code, e.g. restrictions on mobile phone
vehicles use, smoking in vehicles, drugs and
• Ensure delivery targets and incentives alcohol testing policy, eyesight testing
do not inadvertently encourage drivers requirements and any additional
to drive too fast or for longer hours precautions or controls relevant to the
than is reasonable specific nature of either the employee’s
duties or the vehicle itself
• Select vehicles preferably with
a planned maintenance/service • Monitor, review and audit policies and
programme in place procedures regularly, treating breaches
and non-compliance as with other
• Prioritise the purchase/use of vehicles safety rules, with offenders visibly
with features designed to prevent subjected to established disciplinary
accidents and to protect their procedures
drivers, occupants and third parties
• Consider the use of any relevant
• Consider at pre-employment stage protective clothing or safety devices
whether an individual’s safety record as the last line of defence
makes them a suitable candidate
As with any other major organisational
• Apply similar standards to existing change initiative, effective
drivers, i.e. invoking disciplinary communication and consultation are
procedures where drivers are at fault vital. Senior and middle managers need
to get out of their silos and deliver an
effective message by engaging with the
people whose participation is ultimately
most critical: the drivers.
8
EMPLOYERS DRIVEN INTO ACTION NOVEMBER 2008

9. CONCLUSION
Occupational road risk has traditionally
passed under the radar for many
organisations and not been seen as
a major priority. However a combination of
factors including recent developments in
case law, the introduction of the Corporate
Manslaughter Act supplementing other
relevant legislation, and pressure from
action groups has conspired to push the
topic firmly up the agenda.
Looking beyond the negative motivation
provided by new legislative and
enforcement measures, QBE would
strongly encourage organisations to
consider their own business case for
action. Those who adopt a pro-active risk-
SPOTLIGHT ON It is important to make employees based approach to managing the specific
MOBILE PHONES aware of the risks of using mobile challenges of occupational road risk
phones while driving and the criminal will benefit in a far broader sense than
The use of handheld mobile phones
liability this risks causing. Employers simply reducing the risk of prosecution.
while driving, except in specified
should adopt a clear policy on the
emergencies, has been prohibited since
use of mobile phones and look
the Road Vehicles (Construction and
carefully at their policy on the use
Use) (Amendment) (No 4) Regulations
of hands-free phones.
2003 came into force on 1 December
2003. The Road Safety Bill, given Royal Best practice is to prohibit the use of
Assent on 8 November 2006, includes mobile phones and other distractions
additional provisions covering the use while driving except in a ‘genuine’
of mobile phones and other distractions emergency. Any breaches should be
affecting driver’s proper control of subject to disciplinary action. Employers
their vehicles. This legislation affects should ensure, not only that company
employers, making it an offence to policy is applied, but also that
cause or permit employees to use employees are aware of both the
handheld phones or other potentially individual and the wider consequences
distracting devices at the wheel. of any failure to comply.

10. BEST PRACTICE RISK MANAGEMENT APPROACH: QBE & RISK
MANAGEMENT
Develop a bespoke business case for action QBE’s Risk Management teams are
dedicated to providing our clients with
pro-active risk management solutions
and thus helping to reduce claims costs.
We provide expert advice on accident-
prevention measures and work with our
Deliver a strong statement of policy, a strategy, and KPIs clients to analyse their claims trends to
promote effective, innovative and
from senior management
affordable solutions based on best
practice standards.
QBE is a corporate partner of Brake,
the UK’s leading road safety charity.
We have strong associations with risk
Introduce a process of consultation and engagement management providers in the motor fleet
with the workforce arena, and provide benefits and best
practice advice to our motor fleet clients
via our own innovative Risk Management
Essentials programme.
QBE policyholders also benefit from the
added value of a series of initiatives and
Identify organisational driving operations and exposures resource tools designed to highlight and
effectively manage road risk encountered
by fleet policyholders. This covers road
safety, accident management, vehicle
recovery and active risk assessments.
For more information, visit
Adopt risk-based initiatives to eliminate, substitute, www.qbeeurope.com/motor/risk
reduce or control exposure
and www.qbeeurope.com/casualty/
risk-management
Assess and evaluate residual risks and implement
higher order controls
Monitor, audit and review
10
EMPLOYERS DRIVEN INTO ACTION NOVEMBER 2008

11. FURTHER READING AUTHOR BIOGRAPHY DISCLAIMER
As a starting point, QBE strongly Mark Black, Risk Manager This Forum has been produced by QBE
recommends that employers consult Insurance (Europe) Limited (“QIEL”). QIEL is a
Mark joined QBE in 1998, serving
Driving at Work: Managing work-related company member of the QBE Insurance Group
six years as a claims inspector before
road safety, the guidance document
joining the Risk Management team Readership of this Forum does not create an
released by the HSE and the DfT in
in 2004. He has 12 years’ insurance insurer-client, advisor-client, or other business or
2003. A raft of other information and
industry experience working with a range legal relationship.
guidance is available from organisations
of major clients, and specialises in
such as Brake, ROSPA, the Road This Forum provides information about the law to
liability claims and risk management.
Haulage Association and the Freight help you understand and manage risk within your
Transport Association. Mark holds an honours degree in Risk organisation. Legal information is not the same
Management and the Nebosh National as legal advice. This Forum does not purport to
Useful links
Diploma in Occupational Health and provide a definitive statement of the law and is
• HSE: www.hse.gov.uk Safety. He is a Graduate Member of not intended to replace, nor may it be relied
IOSH, a Member of the Institute of Risk upon as a substitute for specific legal or other
• DfT: www.dft.gov.uk/drivingforwork
Management and of the International professional advice.
• Driver Standards Agency: Institute of Risk & Safety Management.
QIEL has acted in good faith to provide an
www.dsa.gov.uk
accurate Forum. However, QIEL and the QBE
• Driver & Vehicle Licensing Agency: Group do not make any warranties or
www.dvla.gov.uk representations of any kind about the contents of
this Forum, the accuracy or timeliness of its
• Vehicle & Operator Licensing Agency:
contents, or that the information or explanations
www.vosa.gov.uk
(if any) given. QIEL and the QBE Group do not
• ROSPA: www.rospa.co.uk have any duty to you, whether in contract, tort,
under statute or otherwise with respect to or in
• Brake: www.brake.co.uk
connection with this Forum or the information
• Road Haulage Association: contained within it.
www.rha.net
QIEL and the QBE Group have no obligation to
• Freight Transport Association: update this report or any information contained
www.fta.co.uk within it.
• Roadsafe: www.roadsafe.com To the fullest extent permitted by law, QIEL and
the QBE Group disclaim any responsibility or
liability for any loss or damage suffered or cost
incurred by you or by any other person arising
out of or in connection with your or any other
person’s reliance on this Report or on the
information contained within it and for any
omissions or inaccuracies.
QBE Insurance (Europe) Limited and QBE
Underwriting Limited are authorised and
regulated by the Financial Services Authority.
QBE Management Services (UK) Limited and
QBE Underwriting Services (UK) Limited are both
Appointed Representatives of QBE Insurance
(Europe) Limited and QBE Underwriting Limited.

12. QBE
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13. Dear reader
Thank you for taking the trouble to read this publication.
QBE Risk Management believe that best practice organisations are those where senior individuals
facilitate and engage in the processes of sensible risk management. We make this document available to
all interest parties in an effort to share knowledge and promote good practise.
Our services are available only to clients insured by QBE in Europe. Our insurance products are sold
through insurance brokers. We cannot offer advisory services to anyone else, however we would be
delighted to hear if you have found this document useful or believe there are risk management issues that
do not receive appropriate attention in the media.
Regards
QBE Risk Management Team
email: RM@uk.qbe.com
www.QBEeurope.com/RM
Disclaimer
This document has been produced by QBE Insurance (Europe) Limited (“QIEL”). QIEL is a company member of the
QBE Insurance Group.
Readership of this Forum does not create an insurer-client, advisor-client, or other business or legal relationship.
This Forum provides information about the law to help you understand and manage risk within your organisation.
Legal information is not the same as legal advice.
This Forum does not purport to provide a definitive statement of the law and is not intended to replace, nor may it be
relied upon as a substitute for specific legal or other professional advice.
QIEL has acted in good faith to provide an accurate Forum. However, QIEL and the QBE Group do not make any
warranties or representations of any kind about the contents of this Forum, the accuracy or timeliness of its contents,
or the information or explanations (if any) given.
QIEL and the QBE Group do not have any duty to you, whether in contract, tort, under statute or otherwise with
respect to or in connection with this Forum or the information contained within it. QIEL and the QBE Group have no
obligation to update this report or any information contained within it.
To the fullest extent permitted by law, QIEL and the QBE Group disclaim any responsibility or liability for any loss or
damage suffered or cost incurred by you or by any other person arising out of or in connection with your or any other
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tel +44 (0)20 7105 4000
fax +44 (0)20 7105 4019
QBE European Operations is a trading name of QBE Insurance (Europe) Limited, no.01761561 ('QIEL'), QBE Underwriting Limited, no. 01035198 ('QUL'), QBE Management Services (UK)
Limited, no. 03153567 ('QMSUK') and QBE Underwriting Services (UK) Limited, no. 02262145 ('QSUK'), whose registered offices are at Plantation Place, 30 Fenchurch Street, London, EC3M
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