VEHICLES DUTY OF CARE - RELEVANT DUTY OF CARE

Duty of Care Legislation - Duty of Care Regulations

Corporate Manslaughter and Corporate Homicide

• section 1 the offence
• section 2 the meaning of "relevant duty of care"

Senior management particularly will not find it so easy to hide from their responsibilities or the liability enshrined in this or future acts - See the current list - Here!

Vehicles Duty of Care are only concerned with the organisation by management of the company vehicles and the company drivers, used on your companies business to make company, management, drivers and vehicles safe and legal at all times!

So as you read through Section 1 and section 2 where you see Duty of Care, Gross Negligence read it with your Vehicles duty of Care managers hat on, relate it to your your Company, your Vehicles, your Drivers and how You look (risk assess) at your job!

Section 1 - The Offence

B. The elements of the new offence are:

• The organisation must owe a "relevant duty of care" to the victim. The relevant duties of care are set out in section 2.
• The organisation must be in breach of that duty of care as a result of the way in which the activities of the organisation were managed or organised. This test is not linked to a particular level of management but considers how an activity was managed within the organisation as a whole. Section 1(3) stipulates that an organisation cannot be convicted of the offence unless a substantial element of the breach lies in the way the senior management of the organisation managed or organised its activities - Only a dedicated Vehicles Duty of Care Manager will protect your Company!
• The way in which the organisation's activities were managed or organised (referred to in these notes as "the management failure") must have caused the victim's death. The usual principles of causation in the criminal law will apply to determine this question. This means that the management failure need not have been the sole cause of death; it need only be a cause (although intervening acts may break the chain of causation in certain circumstances).
• The management failure must amount to a gross breach of the duty of care. Section 1(4)(b) sets out the test for whether a particular breach is "gross". The test asks whether the conduct that constitutes the breach falls far below what could reasonably have been expected. This reflects the threshold for the common law offence of gross negligence manslaughter. Section 8 sets out a number of factors for the jury to take into account when considering this issue. There is no question of liability where the management of an activity includes reasonable safeguards and a death nonetheless occurs.(appoint a Vehicles Duty of care Manager)

C. Section 1(2) sets out the sort of organisation to which the new offence applies. In the first place, this is corporations. These are defined as any body corporate, whether incorporated in the United Kingdom or elsewhere. This includes companies incorporated under companies legislation, as well as bodies incorporated under statute (as is the case with many non-Departmental Public Bodies and other bodies in the public sector) or by Royal Charter. However, the definition specifically excludes corporation's sole, which cover a number of individual offices in England and Wales and Northern Ireland. Section 1(2) also applies the offence to partnerships, trade unions and employers' associations, if the organisation concerned is an employer. These bodies are defined in section 25. The definition of partnership extends to partnerships covered by the Partnership Act 1890 and limited partnerships registered under the Limited Partnerships Act 1907 but not to limited liability partnerships created under the Limited Liability Partnerships Act 2000, which are bodies corporate and therefore organisations to which the offence applies by virtue of section 1(2)(a). The list of organisations to which the offence applies can be further extended by secondary legislation, for example to further types of unincorporated association, subject to the affirmative resolution procedure (section 21). (appoint a Vehicles Duty of care Manager)

D. The term "senior management" is defined in section 1(4) to mean those persons who play a significant role in the management of the whole or a substantial part of the organisation's activities. This covers both those in the direct chain of management as well as those in, for example, strategic or regulatory compliance roles. (appoint a Vehicles Duty of care Manager)

E. The Act also binds the Crown and will apply to a range of Crown bodies such as government departments. Crown bodies rarely have a separate legal personality. Where they do, the application of the offence to corporations (and the Act's application to the Crown) means that the offence will also apply to these bodies. Where they do not, a mechanism is required to identify which Crown bodies are covered by the offence and this is achieved by applying the offence to a list of government departments and other bodies set out in Schedule 1. Section 22 sets out the procedure for amending the Schedule.

F. The new offence will be triable only in the Crown Court in England and Wales and Northern Ireland and the High Court of Justiciary in Scotland. These represent equivalent levels of court and involve proceedings before a jury. The sanction is an unlimited fine (section 1(6)), although the court will also be empowered to impose a remedial order (section 9) and a publicity order (section 10) on a convicted organisation so get a Vehicles Duty of Care Manager!

Section 2 - The meaning of "Relevant Duty of Care"

H. Section 2(1) requires the duty of care to be one that is owed under the law of negligence. This will commonly be a duty owed at common law, although in certain circumstances these duties have been superseded by statutory provision. For example, in the case of the duty owed by an occupier, duties are now owed under the Occupiers' Liability Acts 1957 and 1984 and the Defective Premises Act 1972 (and equivalent legislation in Northern Ireland and Scotland), although the common law continues to define by whom and to whom the duty is owed. In some circumstances, liability in the law of negligence has been superseded by statutory provision imposing strict liability, for example, the liability of carriers is governed by the Carriage of Air Act 1961. Section 2(4) makes provision for the offence to apply in these circumstances too. The section also, in subsection 2(6), makes it clear that the application of the offence is not affected by common law rules precluding liability in the law of negligence where people are jointly engaged in a criminal enterprise (an aspect of the rule referred to by the Latin maxim "ex turpi causa non oritur actio") or because a person has accepted a risk of harm ("volenti non fit injuria").

I. Section 2(1) requires the duty of care to arise out of certain specific functions or activities performed by the organisation. The effect is that the offence will only apply where an organisation owes a duty of care:

• To its employees or to other persons working for the organisation. This will include an employer's duty to provide a safe system of work for its employees. An organisation may also owe duties of care to those whose work it is able to control or direct, even though they are not formally employed by it. This might include contractors, secondees, or volunteers. The new offence does not impose new duties of care where these are not currently owed. But where such duties are owed, breach of them can trigger the offence.(appoint a Vehicles Duty of care Manager)
• As occupier of premises (which is defined to include land). This covers organisations' responsibilities to ensure, for example, that buildings they occupy are kept in a safe condition.
• When the organisation is supplying goods or services. This will include duties owed by organisations to their customers and will cover, for example, duties owed by transport providers to their passengers and by retailers for the safety of their products. It will also cover the supply of services by the public sector, for example, NHS bodies providing medical treatment. (appoint a Vehicles Duty of care Manager)
• When constructing or maintaining buildings, infrastructure or vehicles etc or when using plant or vehicles etc. In many circumstances, duties of care owed, for example, to ensure that adequate safety precautions are taken when repairing a road or in maintaining the safety of vehicles etc will be duties owed by an organisation in relation to the supply of a service or because it is operating commercially. But that may not be apt to cover public sector bodies in all such circumstances. These categories ensure that no lacuna is left in this respect.
• When carrying out other activities on a commercial basis. This ensures that activities that are not the supply of goods and services but which are still performed by companies and others commercially, such as farming or mining, are covered by the offence.
• That is owed because a person is being held in detention or custody. Section 2(2) sets out various forms of custody or detention covered by this: being detained in a prison or similar establishment, in a custody area at a court or police station or in immigration detention facilities; being held or transported under immigration or prison escort arrangements; being placed in premises used to accommodate children and young people on a secure basis; and being detained under mental health legislation. The commencement of this part of the legislation requires the further approval of Parliament.

J. The effect is, broadly, to include within the offence the sort of activities typically pursued by companies and other corporate bodies, whether performed by commercial organisations or by Crown or other public bodies. Many functions that are peculiarly an aspect of government are not covered by the offence because they will not fall within any of the categories of duty of care in this section. In particular, the offence will not extend to circumstances where public bodies perform activities for the benefit of the community at large but without supplying services to particular individuals. This includes wider policy-making activities on the part of central government, such as setting regulatory standards and issuing guidance to public bodies on the exercise of their functions. In many circumstances, duties of care are unlikely to be owed in respect of such activities in any event, and they will remain subject to other forms of public accountability. Sections 2(3) to 2(7) provide that the offence does not apply to the performance of specified public functions. However, whether the offence is capable of applying in any given circumstances will depend in the first place on whether a duty of care is owed to a person by an organisation, and whether the duty of care is a "relevant duty of care" by reason of section 2(2).(appoint a Vehicles Duty of care Manager)

K. In criminal proceedings, questions of law are decided by the judge, whilst questions of fact, and the application of the law to the facts of the case, are generally for the jury, directed by the judge. Section 2(5) provides that the existence of a duty of care in a particular case is a matter of law for the judge to decide. This reflects the heavily legal nature of the tests relating to the existence of a duty of care in the law of negligence. Because the judge will be deciding whether the circumstances of the case give rise to a duty of care, he will need to make certain determinations of fact that are usually for the jury. For example, if considering whether a corporation owes a duty of care as employer, the judge will need to decide whether the victim was an employee of the corporation. The questions of fact that the judge will need to consider will generally be uncontroversial and in any event will only be decided by the judge for the purposes of the duty of care question. If they otherwise affect the case, they will be for the jury to decide.

N.B. The only way to take control of your Vehicles Duty of Care is to appoint a senior Manager your (Vehicles Duty of Care) VDOC Manager.

VDOC - Vehicles Duty of Care Golden Rule

It is not what you have done but what you can prove you have done!