Driver fatigue

Since the Selby tragedy and the subsequent conviction of Gary Hart, who allegedly fell asleep at the wheel of his vehicle, the question of driver fatigue has risen to prominence. Road safety organisations have called for an increase in awareness of the issues and possible further legislation to penalise drivers who cause accidents while tired.Unlike alcohol, which is detectable and measurable, it is practically impossible after an accident to determine whether a driver fell asleep driving, defined as a micro-sleep. Accidents are often put down to a momentary lack of concentration and, with all of the distractions in today's driving environment, this is hardly surprising. But to maintain that an accident occurred solely as a result of driver fatigue is difficult to prove in both the civil and criminal courts. I am only aware of one case among many thousands where the weight of evidence led to the conclusion that the driver fell asleep at the wheel. We are handicapped by the fact that no statistical data is collected after road traffic accidents to determine whether fatigue was indeed a factor. It is practically impossible to back the contention that fatigue is a significant cause of road traffic accidents in this country with accurate data.I remain to be convinced that fatigue causes such a significant number of work-related road accidents that further government intervention is appropriate. However, fleet managers should not ignore the issue of tired drivers. Managers and the drivers of commercial fleets are used to the concept of tachographs recording how a vehicle is being driven. But even with the introduction of digital tachographs, there is no data being collected in terms of the fitness of the driver in terms of fatigue.The Health and Safety Executive (HSE) guidelines for employers managing work-related road safety have been with us since September 2003. These address the issue of driver fatigue in a number of ways. The section related to training issues asks employers if their drivers are aware of the dangers of fatigue and whether they know what to do when they feel sleepy. The issue of taking a course of medicine is mentioned in the fitness section but not specifically connected to the risk of fatigue.Fatigue is raised as a specific issue to be considered by fleet managers with regard to scheduling, time and distance. Sadly, the guidance makes no positive recommendations as to how fleet managers should react to these concerns other than requiring drivers to take rest breaks. The HSE guidance is very good at highlighting issues but not so forthcoming in supplying the tools or solutions a fleet manager requires to produce a risk assessment, policy and method of testing to establish whether the driver is complying with the policy.

Rest regulationsThe sole purpose of the Working Time (Amendment Regulations) 2003 is to prevent employees working excessive hours, which could in turn lead to fatigue. The previous regulations did not address the issue of work-related drivers as vehicle driving was specifically excluded. This has now been rectified by the recognition of a class of employees, "mobile workers", who are defined as drivers of vehicles carrying goods or passengers. Government consultation is currently being undertaken into the activities of mobile workers and by March 2005 specific rules will be put in place governing the working hours of these individuals. Until 2005 such drivers and all company car drivers will be governed by the regulations that were not specifically prepared with them in mind. This is apparent when one looks at the area of fatigue where the regulations provide four definitions:

Adequate rest that is defined as regular rest periods, the duration of which are sufficiently long to combat fatigue and reduce risk of injury

Daily rest of 11 consecutive hours in each period of 24

Weekly rest of 24 uninterrupted hours in each seven-day period

Rest breaks of 20 minutes where the working day is longer than six hours to be taken during working period, which in itself is less than the Highway Code recommendation of 15 minutes break every two hours.

Even a cursory look at the current activities of work-related drivers will show that compliance with the regulations is going to require far more planning of the driver's working day than before.In April 2003 the Court of Appeal laid down a list of aggravating factors for the offence of causing death by dangerous driving. If any aggravating factors were present then this would inevitably result in a custodial sentence. Two such factors were the use of prescription drugs known to cause drowsiness and driving while deprived of sleep or rest, the latter being a legacy from the prosecution of Gary Hart.The government and the courts have, to date, operated a scattergun approach to the issue of fatigue and driving. In some areas, such as the recommendation regarding adequate rest breaks, there is conflict as to what is the most appropriate approach. None of this confusion assists the fleet manager trying to address his corporate responsibilities by putting in place a health and safety policy dealing with fatigue while driving. Notwithstanding the confused messages as to exactly how they should address the issue of fatigue, employers of occupational drivers do clearly have a responsibility to ensure their drivers are not placed in a position whereby they are exposed to the risk of fatigue. To ignore this responsibility is to potentially invite both civil actions for negligence and criminal prosecutions against both the drivers and themselves. So, in order to achieve a measure of protection, the managers of fleets must incorporate a risk management approach.

David Faithful is a partner and fleet legal specialist at Amery-Parkes