Mobile Phone Policies and Managing Work Related Road Risk
This is the second in a series of three blog posts that aims to assist companies in the development of a mobile phone policy.
A company that bans the use of handheld mobile phones but allows hands-free calls while driving for work may think this is enough to avoid prosecution in the event of a crash. However, an enquiry answered by the Home Office revealed that in 2007 nearly 3,000 motorists in England and Wales were prosecuted for failing to have proper control which could amount to careless or dangerous driving. The onus is on the prosecution to prove your fleet driver was using the phone at the time of the crash and may gain access to your phone records. Even if the driver is off the road and stationary, having the engine on may be sufficient to be deemed driving.
Organisations may also be vulnerable to prosecution under Corporate Manslaughter legislation in the event of a road traffic fatality when an employee makes a work related call, unless they have appropriate policies in place and can demonstrate that their mobile phone policy is being implemented and enforced. Prior cases have shown that employers can be prosecuted if they ‘cause or permit’ a driver to use a handheld mobile phone while driving, as the following cases demonstrate.
Case 1 – an employee using a handheld mobile phone lost control of his vehicle and collided with another vehicle resulting in the death of the other driver. The employee was sentenced to three years in prison plus a four-year driving ban. The judge also said that his employers were only cleared of all blame after it was shown that all their procedures and policies were in line with the legislation and that specific written instructions had been issued to all employees regarding the use of mobile phones whilst driving. In this case, having a mobile phone policy and being able to demonstrate that the company and its drivers abided by that policy provided a first line of defence against prosecution.
However, the following cases show how a company could be vulnerable to prosecution if they permit drivers to use hands-free phones when driving for work.
Case 2 – A cyclist was awarded £250,000 a year for life in damages after being left paralysed from the neck down and on a life support machine. The cyclist was injured after being hit by a company car driver while he was using a hands-free mobile phone. The company representative, who was not prosecuted, was ‘on hold’ to his bank when he hit the cyclist at about 70 mph. Lawyers representing the driver’s company insurers admitted that using the phone had played a part in the accident. The judge in the case approved a payment of £250,000 a year for life, alongside a £1.1m lump sum, which, it was calculated, could total more than £9m during the victim’s life.
Case 3 – In 2012 a jury in Texas awarded $21 million in damages to a woman who was struck by a Coca-Cola driver who had been talking on her hands-free mobile phone at the time of the accident. Lawyers successfully argued that Coca-Cola’s mobile phone policy was “vague and ambiguous.”
These cases emphasize that companies must implement fleet risk management programmes to actively enforce mobile phone use while driving policies not just to be legally compliant and for fleet driver safety but also to consider the potential financial impact on your company.
Image (CC) MissPunk