law – Transport Law NI

Upper Tribunal decisions on PTR letters

Some conflict in the case law on propose to revoke letters

Man proposes, but the Upper Tribunal disposes

Sir Edwin Landseer’s depiction of Franklin’s lost expedition in 1845 to make tracks through the Northwest passage and the title ‘Man proposes, God disposes’ is perhaps apt for a potential conflict of jurisprudence on propose to revoke letters of late.

Click-bate and melodramatics aside, there are four cases relevant here but I will take two as the headlines; one per polar bear. Ashro being one and Veltrans the other.

In sum, we have a new line of case law which forces more detailed and less formalistic consideration of operator’s responses to PTRs. One recent case which had the benefit of submissions from the Secretary of State, did not address the matter at all and deemed that an operator must be more forthright and explicit in their request to have a public inquiry.

Propose to revoke [“PTR”] letters are a frequently-used weapon in the Traffic Commissioner and TRU arsenal. When the regulator has grounds to believe that a key element of transport compliance is not being observed, they can send a PTR to the operator. If the operator does not request a public inquiry, or make satisfactory representations, the licence will automatically be revoked.

Many operators are fine with this. Either they can see the writing on the wall and know that a public inquiry would be futile or the licence is no longer being used and they have not quite got around to surrendering it before the renewal date.

However, a significant number of operators are not enamoured by the sight of a PTR letter. Many public inquires begin on account of an operator responding to a PTR by requesting a public inquiry.

Very briefly, the legal framework behind this is:

Section 27 of the Goods Vehicles (Licensing of Operators) Act 1995 requires a traffic commissioner to direct that a licence is revoked if it appears that the operator no longer satisfies a core requirement of holding a licence.

Section 29 tells us that a traffic commissioner cannot direct that a licence is revoked under section 27 without first holding a public inquiry if the operator requests one.

This sounds rather sensible and straightforward: ‘I think you are in breach of a central requirement for an operator’s licence. I will revoke this licence unless you ask for a hearing or give a good explanation.’

However, issues do often arise. Time and again we see operators who do not give such letters the serious attention they demand or they reply to the letter in a way which seeks to rebut the premise of the findings but not to formally request a public inquiry.

The Upper Tribunal has handed down two decisions recently which deal with PTR issues.

The first was Ashro Shipping Ltd [2024] UKUT 425 (AAC).

In this case the traffic commissioner had reason to believe that the standard operator’s licence no longer had a transport manager. This was confirmed by a belated response from the operator confirming that their transport manager had left. The traffic commissioner issued a PTR which had not been responded to within the 21 days mandated by section 27 and the letter itself.

The operator did respond after 24 days (three days late) and explained the reasons for responding late and that steps are afoot to get a new transport manager.

However, the traffic commissioner responded soon after to say that the operator should have been contactable but the licence is to be revoked immediately due to having no transport manager.

On appeal, the Upper Tribunal appeared to have had three concerns with the PTR letter:

Insufficient consideration given to the previously positive regulatory history of the operator.

Reasons should have been given for the refusal of a period of grace.

Unfair and inaccurate description of the purpose of a public inquiry.

Taking those in turn:

The consideration of previous regulatory history in dealing with responses to a PTR appears to be a new addition to the jurisprudence on this narrow matter. This is dealt with at [21] of the judgment where it is held that [consideration of previous regulatory history has] to be a relevant consideration before concluding that this was an operator that deserved to be put out of business. It appears that the Bryan Haulage No.2 question has now been inserted into decisions to revoke after a PTR letter.

However, a curious feature of this matter is that the OTC’s response had appeared to focus on the fact that the operator did not respond on time as opposed to a considered decision on whether to grant a period of grace (dealt with below). Yet the fact is that the reason for revocation was a failure to have a transport manager. As such, it appears that the Bryan Haulage No.2 question will need to be answered in every decision to revoke after a non-response to a PTR letter. Although the Secretary of State was not added as respondent to this appeal, it would be interesting to imagine what submissions they would have made on this point as it extends the considerations to be made by the traffic commissioner. There is now a balancing exercise added to what was often considered to be a power requiring no balance.

That said, it is often our experience as practitioners in this area that the traffic commissioners are more than willing to engage after meaningful responses are given to PTR letters and, in practice, the balancing exercise is often done in any event.

As for the second point, reasons to be given for refusal to grant a period of grace, this again appears to be a new addition to the operation of PTR letters. At [18] of the judgment it is said that

“…cases arise in which the refusal to grant a period of grace is an integral part of the decision to revoke an operator’s licence. In such cases, we consider that the Traffic Commissioner’s obligation to provide sufficient reasons for a licence revocation decision cannot be discharged unless some explanation is given for the refusal to grant a period of grace.”

This is important. Periods of grace can be applied for where there has been a departure of a transport manager or the operator is in shallow financial waters and financial standing is an issue. It is unlikely to apply where there are issues with good repute.

Decisions to refuse a period of grace are not appealable per se. It is therefore interesting to see how this judgment will impact on operators who receive a PTR letter, reply asking for a period of grace and are then refused one by the traffic commissioner after detailed consideration.

Another way of looking at this, in my submission, which had not been suggested by the appellant, is that the request for a period of grace is tantamount to a request for public inquiry. There are two options available to an operator upon receiving a PTR letter: make representations or request a public inquiry. Surely the request for a period of grace is the greatest indication that an operator wishes to continue their licence and, if refused, a public inquiry ought to be called.

This often catches operators out. Perhaps it is best that any response to a PTR letter, whatever form of words it takes besides ‘please revoke my licence’, should lead to the calling of a public inquiry. A presumption in favour of an inquiry if you will.

The third reason given by the Upper Tribunal is also interesting. The PTR letter in the instant case tells the operator that a public inquiry can be requested “…in order [for you] to offer further evidence as to why the licence should not be revoked.” The judgment at [22] deemed this to be an “…inaccurate and unduly restrictive, description of an inquiry…” and it was “…unfair because it was built on a foundation that undermined procedural protections that Parliament has seen fit to build into the licence-revocation process.”

One other way of looking at this, which had not been raised by the appellant, is that the description (or misdescription) of the public inquiry suggested very subtly -and perhaps unintentionally- a reverse burden arising from a PTR-prompted public inquiry. The traffic commissioner in such public inquiries will have the burden of proof and not the operator. The opposite of course is true of application public inquiries.

One final interesting point made by the Upper Tribunal is that the late response by the operator matters not. There is a 21-day limit set by section 27 for representations to be made. The offer of a public inquiry is, unhelpfully as always with transport legislation, in a different section: section 29. It does not set a time limit for the operator to request a public inquiry. Although the judgment referred to the PTR setting no time limit a request for an inquiry, one wonders whether in the age of Ashro Shipping PTRs, a request for a public inquiry can made once the traffic commissioner decides to revoke the licence despite representations being made.

The second case is Veltrans Green Ltd -v- Secretary of State for Transport [2024] UKUT 444 (AAC). This was a much more contested and detailed affair. There is an interesting discussion of a change in circumstances where it becomes apparent to the OTC that the operating centre perhaps should not have been approved at the application stage.

However, the decision is more important for the purposes of this article for what is speaks of in terms of the PTR letter in that case. Unlike the Ashro PTR response (where the operator merely asked for more time), in Veltrans, the operator said inter alia:

“Please consider allowing us a chance to prove these were not intentional errors but rather misunderstandings, especially regarding the suitability of the operating centre.”

At [41], the Upper Tribunal decided that this could not reasonably be read to contain a request for a public inquiry. It is axiomatic that each case turns on its own facts, but this appears to be at odds with the decision of Direct Service Logistics UK Ltd [2024] UKUT 386 (AAC) at [69] which has a handing down date of 22/11/24 which was before the hearing of Veltrans. The judgment of Veltrans makes no reference to Direct Service Logistics. This will need to be resolved in future. One should hope that the Upper Tribunal prefer the decision of Direct Service Logistics which is a more fair reflection of the reality of many operators who, in my experience, often fail to grasp the importance of requesting a public inquiry until it is too late. If ‘allowing us a chance to prove’ is not an unsophisticated and indirect request for an inquiry it is difficult to see what could be.

That point aside, it is interesting to note that the PTR letter said the following:

“…the traffic commissioner in accordance with section 29(1) offers you the opportunity to request a public inquiry in order to offer further evidence as to why the licence should not be revoked.”

This is same wording that the Upper Tribunal in Ashro deemed to be unfair and inaccurate. We therefore appear to have two cases not entirely aligned with each other on this narrow but important point.

The Ashro hearing was heard on 03/12/24 and judgment handed down on 12/12/24. Veltrans was heard on 10/12/24 with handing down on 30/12/24. Both benches were differently constituted. Neither hearing had been aware of the other ruling therefore. Many of the criticisms of the PTR in Ashro had been made by the same bench in the case of Autoworx Recovery Ltd [2024] UKUT 421 (AAC). I assume one case was heard in the morning and the other in the afternoon.

The wording of the PTR letter and the suggested reverse burden was not addressed in Veltrans and the point was not taken. It is likely that Ashro and Autoworx will be followed. The Upper Tribunal was quite emphatic on the point. However, like Veltrans, the point was not subject to adversarial argument.

Above Standards – 1250mm and the danger of lift axles

At a recent hearing before the Traffic Commissioner on behalf of an operator who had a bridge strike, a curious technicality arose in relation to a particular model of vehicle. The manufacturer will remain nameless but those of us who have had the great privilege of piloting them will know to whom I refer.

The facts were very simple. This was not a bridge strike where the trailer could never fit under. The height limit for the bridge was 4.2m. The height of the trailer (when sat level) was 4.2m. The driver had changed the in-cab height marker to reflect this. Travelling under the bridge should be seamless, albeit will little margin for error.

Alas it was not to be. Contact was made with the bridge by the bewildered driver.

In short, ‘4.2m based on a 1250mm 5^th wheel height’ a declaration that we are all familiar with, had been overlooked. The former figure was taken as absolute. The latter figure was assumed to apply.

In reality, the vehicle unit’s 5^th wheel did not sit at 1250mm. It came from the factory with an axle-down height of 1285mm. This is the first issue. When the mid-lift axle is raised, the 5^th wheel height is increased 50mm to 1335mm. The dye was cast. The true dimensions of this vehicle made a collision inexorable.

These two issues will be familiar to those of us who have driven this marque on mainland Europe, particularly in Holland. The golden rule being that, when pulling a fridge, even when empty, the mid lift must stay down at all times lest your Thermoking will be violently stripped of its crown.

All of this is to say that there are two issues which seem to largely elude many operators running mixed fleets:

That 5^th wheels of this particular manufacturer tend to sit higher on the drive axle (above 1250mm).
Some 5^th wheel heights can vary based on its thickness.
Some vehicles lift the drive axle airbags slightly when the lift axle is raised in order to avoid the lifted wheels dragging on the road (which may lead to ‘flat spots’ on the tyres over time).

This is not something which has been recognised by all operators. Many do, of course, but it is not something which features in most of the height awareness training I have seen. Emphasis is put on the driver assessing the height of the trailer (usually by looking at the height marker on it) and no or little consideration is given to the true height once hooked-in and running height is set. The unit’s contribution to the height is not factored.

Although there is only a maximum discrepancy of around 8cm in all of this, which may not be quite enough to destabilise a bridge on impact, it is more than enough to make contact with a bridge which will lead to a preliminary hearing which will then then lead to a discovery of other unrelated compliance oversights.

The operator in this particular case had, after the incident, measured the 5^th wheel height for each one of its vehicles for both axle up and axle down and produced cards with that information, bespoke to the registration, which are kept in the vehicles.

In summary, beware the 1250mm standard. The prevalence of these type of vehicles, with the higher 5^th wheel height, are such that 1250mm perhaps cannot said to be a standard any longer, but merely one of two options.

Regulation Hammers and Nails with Airbrakes

The Department of Transport is consulting on a change to the GB Highway Code. The changes proposed seek to establish a ‘hierarchy of road users’. In essence, the largest vehicles will bear most responsibility for road users smaller than them. HGV drivers will owe the greatest duty of care to all road users while pedestrians will owe no duty.

This concept is not surprising, particularly in GB where Traffic Commissioners can suspend the vocational licence of a HGV/PSV driver for serious conduct breaches. In practice, ‘professional’ drivers will always be held to a higher standard by police, DVSA and, in the worst cases, juries.

Amendments to the Highway Code are rarely controversial. However, the proposals from the DfT risk striking a balance of road safety too far in one direction. The concept of the hierarchy is reasonable, how the Highway Code seeks to operationalise it is not.

The mischief these proposals seek to cure is HGV turning-left cases when a cyclist is kerbside. These proposals are an incredibly inefficient way of doing this. They attempt to fix the problem by adding onto the existing duty of care of motorists. The HGV driver duty of care is already at saturation point; but when you have a regulation hammer, everything with airbrakes looks like a nail.

This is a 67-page proposal, so below is merely a summary of the salient points and my responses to DfT. I refer to HGVs throughout – but the proposals make no such distinction, they apply to all motor vehicles. This will not effect the Code in Northern Ireland – only GB. However, if passed, it is likely that Northern Ireland will follow.

New Proposed Rules

Drivers should not make cyclists stop or swerve when turning into a junction in the same way as you would not turn across the path of another motor vehicle.

The comparison between cyclists and motor vehicles here is at best strained, and at worst, illogical. If a HGV is turning left, it is inevitable that the traffic behind will stop until the manoeuvre is complete. This is because cars do not ordinarily overtake down the nearside when a vehicle is turning left.

This rule would make sense if it applied to cases where the vehicle has overtaken the cyclist and then almost immediately turns left, cutting the cyclist off. However, such a rule is mentioned separately in the document and so does not apply to such situations. It would also make sense if cyclists were not permitted to pass a vehicle on its nearside.

As such, the HGV will be expected to sit at the junction with its left indicator on whilst cyclists continued on. The HGV will only be permitted to start the manoeuvre when doing so will not cause a cyclist to stop.

We must also question at what distance does the approaching cyclist have to be before the turn can be executed in compliance with this rule, bearing in mind that HGVs may block an entire road for some time in order to complete the manoeuvre.

Whilst cycling on busy roads with vehicles moving faster than you…keeping at least 0.5m away from the kerb edge.

This rule may offer a solution to the problem of turning left HGV -v- cyclist collisions in city centres. If the cyclist should stay 0.5 metres from the kerb, the cyclist will be encouraged to only overtake on the righthand side or keep with the flow of the traffic in the middle of the lane.

At junctions with no separate cyclist facilities, it is recommended that you proceed as if you were driving a motor vehicle. Position yourself in the centre of your chosen lane…

This is a sensible distinction to make. Where there is a cycle lane, it is only fair that vehicles stop to let cyclists in that lane continue straight. It takes little cognitive bandwidth to check that a cycle lane is empty. It is another thing to constantly check mirrors in case a cyclist has been slipstreaming you for the past mile and appears out of nowhere. It is no secret that in busy city centres, cyclists tend to weave in and out of slow or stationary traffic (as is their right to do), but this makes them very difficult to spot.

That being said, there is a strong argument that even with cycle lanes, cyclists still ought to stay back from vehicles who appear to intend to turn left.

If you are going straight ahead at a junction, you have priority over traffic waiting to turn into or out of the side road… Be particularly careful alongside lorries as their drivers may find it difficult to see you.

This is dangerously worded. A junction with motor traffic and cyclists is precarious at the best of times. Explicitly giving cyclists priority for going straight when vehicles are turning risks intransigence from some. These situations require common sense and mild-mannered prudence; not a blank cheque for one group of road users to bomb on regardless of the clear intentions of others.

Asking cyclists to be careful around large vehicles is inadequate. HGV drivers have six mirrors, a windscreen and possibly a digital screen showing external cameras to monitor. It is eminently easier for the cyclist to spot danger than the HGV driver. Drivers of such vehicles are already saturated with monitoring duties; the cyclist has virtually none. It may be legally valid to force drivers to give way to cyclists, but it is unlikely to make much difference to the amount of deaths at junctions.

Cyclists may pass slower moving or stationary traffic on their right or left, including at the approach to junctions, but are advised to exercise caution when doing so.

Again, advising cyclists to exercise caution is valid, but the Code must go further. It must state that they should give way to motor vehicles which appear to intend to turn. However, rule 72 will remain which states ‘do not ride on the inside of vehicles signalling or slowing down to turn left’ – this must be emphasised in the new Code.

Implication of these proposals

None of the above are predicated on ‘must’ or ‘must not’; all of them are ‘should’ or ‘should not’ which means they are advisory and not an offence. However, under section 38(7) of the Road Traffic Act 1988, a breach of any rule in the Code can be used as evidence ‘tending to establish or negative any liability which is in question in those proceedings’. There is a real risk, if the above proposals are authorised by the Secretary of State, that there will be a de facto presumption of liability against drivers in turning left HGV -v- cyclist collisions.

The new Code may well make it easier for the police to charge and for the courts to convict drivers in these turning left cases, but it is unlikely to actually reduce the amount of them.

These proposals are a missed opportunity by DfT to implement an effective solution to save the lives of many cyclists.

Hitting the duty of care in your blindspot – Fresnel lenses in court.

Bonsor v Bio Collectors Ltd [2020] EWHC 669 (QB)

Summary

No duty on an operator to fit a Fresnel lens.
Issues with evidence – this could change in time with better argued evidence.

This is a personal injury Queen’s Bench case from England and Wales. Although it does not change the law, there is an interesting discussion on the duty of care owed by operators of HGVs in relation to the fitting of Fresnel lenses.

As far as I can tell, this is the first reported case addressing the issue of Fresnel lenses.

Facts

A class II Renault Premium was turning left off a road in the centre of London. The driver did not see the claimant who was crossing the road at the time, collided with her and caused significant injuries.

Issues at trial

Issues of primary liability of the defendant and contributory negligence of the claimant were explored. However, specifically for us in the transport industry, expert evidence and submissions were made in relation to establishing a specific duty of care owed by the defendant operator to the claimant to fit a Fresnel lens which could have prevented the accident.

Peter Marquand (sitting as Deputy High Court Judge) held that, as was accepted by both parties, there is no legislative requirement to fit such lenses. Additionally, at [95], the claimant had failed in discharging the burden of proving the existence of such a duty.

Why should operators take note?

This case merely confirms what we already know about Fresnel lenses – the Health and Safety Executive, Transport for London and FORS &c. recommend them but there is no statutory or regulatory requirement for them.

Why the court decided there was no duty to fit a Fresnel lens:

substantial reliance on a report which did not deal with Renault Premium cabs;
the claimant’s expert had never actually fitted a Fresnel lens;
no detailed evidence on the efficacy of the lenses was presented;
there was no evidence as to the cost of such a lens;
neither expert knew much about where or how to fit a Fresnel lens in a lorry; and
overall, the state of evidence on Fresnel lenses was ‘very unsatisfactory’.

This case, however, leaves open the possibility of an operator being fixed with such a duty of care if:

the operator had foreseen the risk of an accident in the absence of a Fresnel lens;
the court decides it would be fair, just and reasonable to impose such a duty;
the fitting of the lens would have, on balance, prevented the accident or led to a less serious outcome; and
the cost of doing so would not be disproportionate (the ‘magnitude of risk’).

Operators and their insurers should note that claimants will use this case as a template of how not to go about establishing a duty of care in relation to the fitting of Fresnel lenses – this will not be the last time this argument will be attempted.

I have in mind the many left-hookers operated by UK/Ire hauliers and blind-side lane-changing collisions but also the HGVs that operate mainly in city and town centres. There may not be a statutory requirement to fit them, but a court may decide that it would have been reasonable for you to fit one if it could have prevented an easily avoidable accident.

The shifting winds of burdens – a note for practitioners and HGV/PSV operators – Woodhouse v Lochs and Glens (Transport) Ltd.

Woodhouse v Lochs and Glens (Transport) Ltd. [2019] CSOH 105

This recent case from the Outer House in Scotland warrants a quick summary for both lawyers and operators/drivers.

It goes without saying that Scottish law is not easily translatable to that of this jurisdiction, but the reasoning of Lord Glennie may be of some persuasion in borderline cases.

Facts.

The pursuer (plaintiff) was a passenger on the bus of the defender (defendant) which came off an A-road in the Scotland highlands, rolling once and coming to rest quite a distance from the road with 51 passengers. The driver claimed that high winds pushed the bus over the verge.

Issues at trial.

The case is largely a non-descript trial of an RTA-related PI; but an argument raised by the plaintiff is noteworthy on account of its scarcity in the law reports.

It had been argued that a reverse burden ought to apply – suspending the normal common law rule of ‘he who asserts must prove’.

Plaintiff’s submissions

Mr Milligan QC suggested that the fact a well-maintained and properly driven bus came off the road gives rise to a prima facie inference of negligence. The suggestion of adverse weather conditions does not avail the defendant of a rebuttal of this – drivers are under a duty to drive accordingly to the weather conditions.

Defendant’s submissions

Mr Primrose QC retorted that the reverse burden and res ipsa loquitur only applied where ‘all the factors contributing to the accident were within the control of the defenders’ and ‘in circumstances where the pursuer did not know and could not know the cause of the accident’.

Decision.

At [29], Lord Glennie cited part of his decision in Morton v West Lothian Council (2006):

“The justification for such a shift is obvious; not only are all the circumstances under the control of the defenders but the defender will have the means of knowing what occurred. The shift is necessary to avoid the denial of justice to those whose rights depend on facts incapable of proof by them… the onus shifts to the defender to prove, at the least, the existence of other facts or circumstances which might have caused the accident without his negligence”

In relation to the facts of the instant case, at [30], Lord Glennie decided that

“everything relevant to the accident involves matters within their knowledge and control… It is theoretically possible for the pursuer to find out what the defenders have done and not done in relevant respects, but in reality the rules of pleading and recovery of documents mean that there are likely to be gaps in what the pursuer can explore with a view to pinpointing where the fault lies.”

As such, he held that Lochs and Glens (Transport) Ltd were indeed on the wrong side of res ipsa. In any event, however, they easily discharged this evidential burden.

I proffer two points to this. First, this again marks a further liberalisation of the rules of res ipsa in comparison with the other two jurisdictions, but as mentioned at the beginning, such arguments may arise in a persuasive manner given Lochs and Glens (Transport) Ltd is now one of the most authoritative cases on the matter in Scots law.

Secondly, it appears that Lord Glennie’s decision in Lochs and Glens but also from Morton are driven by concerns of equality of arms in litigation – or to put it in less guarded terms, it would perhaps be the best explanation for it. If we examine the reasoning at [30], it is difficult to see quite how everything relevant to the accident is within the knowledge of the defender. The obvious retort to this point is the adequacy of litigation pleadings and discovery; however, the ‘gaps’ in such procedures allegedly create a potential injustice to pursuers.

That being said, provided the burden can be discharged by simply offering an explanation for the accident which does not include negligence of the defendant, then perhaps the shift is negligible to the point of becoming illusory.

A word of warning to operators and drivers.

Given the potential for substantial damages, this case was vigorously pursued and defended with an impressive amount of detail and the engagement of experts not usually to be seen in RTA PI actions. The following topics were investigated:

Condition of the coach
Weight distribution of the coach
Stop at the lay by (use of tachograph downloads)
Speed
Reaction time

There is no need for me to explain each of the above. But as always, these reported cases send warning shots across the bows of operators – documentation needs to be completed to virtual perfection. For drivers, momentary absent mindedness may be overlooked 95% of the time, but when a gust of wind comes along and you are on the line for causing injury, loss and damage to 51 people, small infringements are magnified.

There is also a word of warning for operators on encouraging or even permitting drivers of high-sided vehicles to continue in adverse weather conditions. My next blog may shed some light on that topic!

Article 12 of Regulation (EC) 561/2006.

This allows drivers to ‘go over’ their hours as a result of an unexpected delay; but only to the extent necessary to find suitable parking. It will exempt the driver from an infringement.

What is an infringement?

All drivers who have to deal with tachographs are aware of the various rules relating to 45-minute breaks, 11-hour daily rests etc. Any violation of these, no matter how small (even by one minute) is enough to be considered an infringement.

What does Article 12 say?

Article 12 states:

“Provided that road safety is not thereby jeopardised and to enable the vehicle to reach a suitable stopping place, the driver may depart from Articles 6 to 9 to the extent necessary to ensure the safety of persons, of the vehicle or its load. The driver shall indicate the reason for such departure manually on the record sheet of the recording equipment or on a printout from the recording equipment or in the duty roster, at the latest on arrival at the suitable stopping place.”

This means that, provided you do not create a bigger danger on the road, you are permitted to drive over your time to enable you to get to suitable parking in order to protect the safety of the driver, the vehicle or its load. The driver must also record the reasons for this on the analogue chart or on the back of a printout.

What kind of situations does it cover?

The best way to think of an Article 12 exemption is when something is unexpected such as a traffic accident between junctions of a motorway and you having to wait 30 minutes to get moving which has pushed you over your daily spread.

However, the rule is worded is a broad manner to cover any unexpected event which makes it impossible for the driver to remain compliant with drivers’ hours.

How does this work?

If (or when!) you are stopped by the DVA/DVSA and your cards are checked, you will normally receive a fine if you have an infringement. However, if you show the examiner the printout from the day of the infringement, you will not receive a fine.

This is normally how it operates, but there can be particular issues.

If you knew the run could not be done within your hours.

Article 15 of the 2006 Regulation states that employers must organise the work of their driver so as to comply with drivers’ hours. This means that, when you leave the yard with a load and are aware that there is a risk that the run may not be completed within your available spread etc., you will not be able to rely on an exemption under Article 12.

This applies regardless of what type of goods you are carrying. Many drivers think that carrying perishable / fresh allows them to drive over their hours. This is not the case; although it has been argued that the wording in Article 12 which allows drivers to go over their hours to ensure the safety of their load, could cover such a situation. The Court of Justice of the EU has settled this matter and made clear that infringements can only be exempted if the delay was unexpected – if you knew you would not have enough time to finish the run, you cannot use Article 12 to avoid an infringement.[1]

Provided that road safety is not jeopardised.

Using Article 12 to move the lorry when your hours are up does not mean you can do so no matter what. The safety of yourself, your lorry and your load must be balanced against consideration for road safety in general. If, for example, you are too tired to move the lorry safely, then you will not be covered by Article 12.

Suitable stopping place.

This particular point has not been substantively addressed by the courts and therefore, a large amount of the interpretation will be done by individual traffic examiners.

Much of it will come down to common sense. If you decide to drive three hours over your spread, simply to get to a chippy that you like, while you pass two motorway service stations, then it is possible that you will be denied the use of Article 12. However, if you are in a spare unit with no food, then passing a number of empty lay-bys in order to get to a service station an hour away may be more acceptable. You, as the driver, must make an assessment on what would be reasonable, in your professional opinion, to do.

There will also be scope for choosing a stopping place based on the type of load you are carrying. If you have an abnormal load, then you will be permitted to travel to the nearest wide-load bay at services etc. The same flexibility should apply to livestock and high-value cargo where a normal A-road lay-by or industrial estate is simply not suitable.

Also bear in mind that road safety cannot be jeopardised regardless of what circumstances you find yourself in.

Recording.

As soon as you park at the nearest suitable stopping place, you must take a driver print-out for that day (or write on the back of the analogue chart), the reasons for driving over your hours. It is also best practice to mention that you only drove over your hours to the extent necessary find the nearest suitable parking and then sign it along with the date and time.

If you do not record the reason for driving over your hours, you cannot avail of Article 12, even if you were fully entitled to drive over your hours.[2] It appears that most of the issues which arise under Article 12 are due to this point. Lorry drivers are inconvenienced every day by traffic accidents, unexpected delays at deliveries etc. all of which are covered by this exemption, but the drivers are ultimately fined because of a lack of recording or inadequate recording of reasons. Documenting these events is absolutely vital – and the more information you provide, the better your chances. Best practice would be to write a few sentences on a notebook and staple this to the chart / print-out. The tachograph regime is a very formal and strict system, so likewise, any exemptions to the regime must be similarly formal and strict.

Remember to inform your employer of this at the time.

After 28 days.

It is quite easy to lose the Article 12 print-out after 28 days since it essentially does not matter to you any longer, but do ensure that you give your employer your print-out with the reasons or remind them of the analogue chart which bears the reasons on the back when you hand these in after 28 days.

[1] Case C-235/94; (R v Bird [1996] RTR 49).

[2] Harding v Vehicle and Operator Services Agency [2010] EWHC 713 (Admin).