Last reviewed 1 October 2021
Load security and the way any issues are prosecuted or regulated is an area that has changed substantially in recent years and one where operators need to ensure they keep up to date with “best practice”. Here Andrew Woolfall, of Backhouse Jones Solicitors, examines the way drivers are expected to report defects, what is deemed acceptable when conducting regular brake tests and the change in attitude towards loads which are not properly restrained.
The established attitude to enforcement
Historically, insecure loads were the domain of the police and they only became involved if there was an incident. It was usually the case that something had to happen to the load before any enforcement action was taken and then, as today, there were a range of offences to be prosecuted. Where there was perhaps only minor movement it might be a simple prosecution with no penalty points for the driver but at the other end of the scale, if the insecure load led to a fatality, the driver might be prosecuted for causing death by dangerous driving. Such prosecutions would – and still do – end up with custodial penalties. However, in the main it was the most common offence that was prosecuted resulting in a simple, low level fine and with the imposition of three penalty points on the drivers’ licence. The Health and Safety Executive (“HSE”) rarely got involved, with insecure loads only becoming an issue if an incident occurred on private premises, and the Vehicle Inspectorate (or its successor, VOSA) would rarely take issue with the way in which a vehicle was loaded.
The current enforcement procedures
In recent years, however, there has been a substantial change. Some time ago, the HSE began accompanying VOSA on roadside checks and training their staff in load security so that VOSA (and now the DVSA) has the power to impose prohibition notices and fixed penalties. There no longer has to be an actual incident where a load either moves or falls from a vehicle and enforcement action is taken when a load is simply not secured correctly. In addition to the police, the DVSA can also now bring proceedings before the magistrate’s court and the most recent sentencing guidelines suggest that even in a relatively simple case, where no injury has occurred, the starting point for a driver’s fine should be the equivalent of a week’s wages. There are unlimited fines for operators and it is common to see such penalties running into several thousand pounds. Where a driver commits two or more offences of this nature within a period of three years, the court must disqualify them for at least six months.
The issue of load security has also now become part of the “maintenance investigation visit report” undertaken by DVSA vehicle examiners when visiting an operator and, alongside reviewing vehicle condition, maintenance records and procedures, questions are now also asked as to whether an operator has appropriate load security arrangements in place and whether drivers and other relevant staff are appropriately trained. Evidence is expected and where there are shortcomings, an explanation is required.
In addition to prosecutions before the magistrates’ court which carry increased penalties, we now also see an increased number of cases being referred to the traffic commissioners. For operators, insecure loads can often result in single issue public inquiries. For drivers, sanctions are frequently imposed through driver conduct hearings with the current senior traffic commissioner’s guidance and direction suggesting that the appropriate starting point is a period of suspension of 28 days for the vocational driving entitlement.
How to avoid problems
Many operators still leave load security to their drivers, assuming that they are best placed to assess a load and how to transport it safely. However, the subject is no different to any other operational matter which should be treated as a health and safety concern. This includes carrying out risk assessments for loads carried, producing method statements for the procedures to be followed and thereafter providing the correct equipment and training staff – including loading staff and drivers – how to properly secure loads. There then needs to be a system of random audits to make sure everyone is doing what they should be.
Whilst it may be impractical to risk assess every potential type of load to be carried, operators should make sure that drivers are aware of all basic principles of load security and that they are provided with the correct equipment. This could range from proper straps or chains to making sure sheeting is available. Where regular loads are carried, thought should be given to issuing drivers with schematic drawings showing where and how to secure loads.
Where operators cannot demonstrate that some thought has been given to load security and staff training, traffic commissioners are increasingly unsympathetic when issues have arisen. It will not be enough for an operator to claim that the driver was “experienced” without being able to show that proper training and auditing has taken place.
There is now a substantial amount of guidance material available to operators including a code of practice and various guidance notes including:
The official code of practice - Safety of loads on vehicles.
DVSA load securing – vehicle operator guidance.
However, whilst guidance cannot cover every potential load to be carried, operators should be aware of the basic principles and ensure the correct equipment has been provided and training given. All too often at public inquiry we see operators who cannot produce anything to say that thought has been given to load security. These operators then face having their licences curtailed, suspended or in the most extreme cases, revoked.
Self-policing is key
Even when thought has been given to load security, as set out above, operators need to make sure that drivers are following their standing orders. For example, if automatic sheeting equipment is available for loads such as skips, operators need to check that drivers are using it. All too often we see vehicles travelling with loads of waste where sheeting is available but not used. If some of the waste was to fall from the vehicle, and an accident occur, the operator could find themselves under scrutiny unless the operator can show proper training has taken place and that audits have been undertaken to make sure systems are being implemented.
Where vehicles are loaded at the operator’s yard or come into the operating centre in a loaded condition, thought should be given to including load security as part of the gatehouse checks and to ensure drivers have properly undertaken their daily defect reporting obligations.
Ensuring load security remains a priority
Drivers and operators must now expect the enforcement authorities to look at their vehicles to ensure loads are properly restrained and should also expect consequences if they are not. There does not have to be an incident or indeed evidence that a load has moved.
It should be expected that DVSA will investigate curtain sided trailers to ensure that proper load restraint systems have been used and that the driver is not simply relying on the curtains as load security. It is also not enough to simply have “EN XL” rated curtains on a trailer and believe that allows to the driver to avoid properly securing the load. The structure of the trailer must be similarly rated and it is now common for DVSA to properly check all certifications are in place on a trailer rather than simply relying on a sticker on the curtain proclaiming the trailer to be “EN XL” rated.
A failure to properly deal with load security not only risks large fines for an operator but also having the traffic commissioner find there has been a breach of undertakings and the associated loss of good repute that may bring. As in many other areas of rapidly changing regulation and enforcement in the transport sector, load security needs to become and be treated as a high priority.