Agency drvrs/ damage and responsility

Well in the time that i worked for several agencies drivers where continually damaging vehicles, including a few rollovers bridge strikes ect, none as far as I’m aware where asked to pay for the damage by the agencies, they probably didn’t get much if any further work from them mind you,

I think it was partly the reason why they shut up shop, insurance costs, plus possibly loss of contracts with some companies,
It’s the agencies responsibility to meet the costs for all claims if deemed the fault of their drivers , does sound like they are on the take here as suggested trying to get a double hit out of it , Name & shame i say

All legitimate agencies must have public liability and employers liability by law. The latter should cover claims that the company using the agency’s services might make against the agency for negligence by one of its employees. Typically agencies will also have cover for ‘small’ claims negligence cover up to £5000. Many agencies try to pass a surcharge of £1.00 per hour on to the company using them for drivers negligence. I would not use an agency to supply me drivers that tried that on and I refused to pay it, but then again some days I was using up to 25 agency drivers so I was in a very strong negotiating position with agencies. As already stated the agency cannot claim the money back off you unless you had signed an agreement to such effect and if you did their policy should have been made clear to you at interview.

i did a similar thing on a site, most divers did a little damage. some was preventable but most of it wasn’t.
all we did is fit another light, or do a running repair.
i don’t know why someone should be charged £800 for a ten minute job. but i also can’t understand why he had to call someone out for such a little job.

gingerfold:
All legitimate agencies must have public liability and employers liability by law. The latter should cover claims that the company using the agency’s services might make against the agency for negligence by one of its employees. Typically agencies will also have cover for ‘small’ claims negligence cover up to £5000. Many agencies try to pass a surcharge of £1.00 per hour on to the company using them for drivers negligence. I would not use an agency to supply me drivers that tried that on and I refused to pay it, but then again some days I was using up to 25 agency drivers so I was in a very strong negotiating position with agencies. As already stated the agency cannot claim the money back off you unless you had signed an agreement to such effect and if you did their policy should have been made clear to you at interview.

This I think is required for anything that isn’t normal in a contract, ie liability claims etc.

I think 99% of people sign ‘contracts’ without actually reading them, they’re written in such small print, on so many pages, handed you in a dull room, and things like this could be slipped in easily.
I’m pretty sure that doesn’t make them legally binding, but might be wrong, are we HGV drivers or solicitors? Do we have to take a solicitor with us when signing on ANOTHER new agency or getting a new job?

Name and shame, tell them to ■■■■ off, if they STEAL the money out of your wages, take them to court and then have a chat with the owner I think :smiling_imp:

Winseer…a couple of points, there is no such thing as under insured…you either are…or you are not… unless you mean third party only…
Fraud…no such thing in these instances…fraud would only occur when the owner claimed from his insurance, and also from the agency…

At our company we employ a lot of agency, the damage to our equipment is astronomical, we have exhausted our claims via the insurers, and therefore have to pay for most damage with cash.
So good luck to the haulier concerned, who may be in the same boat, and wants to cover his costs, his first port of call is the agency.
Why should drivers damage a truck negligently, and expect someone else to foot the bill, even in this case the poster was blaming the posts on the pavement ■■?
We have had agency fill up trucks with red diesel, and NO you cannot tell VOSA and pay the difference anymore…the truck has to be drained, the filters, lines etc have to be cleaned out, thats a days work lost for that truck, and no redress to the driver or agency, if it was me, i would tell the agency…no more work for you…and it happened twice, 2 different agency drivers, weve had doors ripped off, tyres ripped to bits 3 on one trailer, side damage, rear damage, the list is endless, and the trucks and trailers are 3 yrs old, someone has to take the blame im afraid, and who else but the driver, if he damages the truck…he should pay and not expect someone else to.

truckyboy:
Winseer…a couple of points, there is no such thing as under insured…you either are…or you are not… unless you mean third party only…
Fraud…no such thing in these instances…fraud would only occur when the owner claimed from his insurance, and also from the agency…

At our company we employ a lot of agency, the damage to our equipment is astronomical, we have exhausted our claims via the insurers, and therefore have to pay for most damage with cash.
So good luck to the haulier concerned, who may be in the same boat, and wants to cover his costs, his first port of call is the agency.
Why should drivers damage a truck negligently, and expect someone else to foot the bill, even in this case the poster was blaming the posts on the pavement ■■?
We have had agency fill up trucks with red diesel, and NO you cannot tell VOSA and pay the difference anymore…the truck has to be drained, the filters, lines etc have to be cleaned out, thats a days work lost for that truck, and no redress to the driver or agency, if it was me, i would tell the agency…no more work for you…and it happened twice, 2 different agency drivers, weve had doors ripped off, tyres ripped to bits 3 on one trailer, side damage, rear damage, the list is endless, and the trucks and trailers are 3 yrs old, someone has to take the blame im afraid, and who else but the driver, if he damages the truck…he should pay and not expect someone else to.

Blame drivers by all means, but you are tarring all agency drivers with a rather ■■■■■■ brush there mate.

Only damage I’ve ever done is broken suzi’s (3 times :cry: ) and a lens on the back of the unit, and all these were whilst fully employed.

The suzi’s, twice were whilst spinning round in a yard, and once was because I forgot to disconnect them when dropping a trailer - got distracted - and I paid to replace them by my own choice, not that of the company.

The lense was again turning in a yard and the leg winder went through the lense.

On agency, I’ve had 1 car hit me on a roundabout and that’s it, no other damage, my fault or anyone elses, not ripped doors off, smashed up interiors, stolen radio fronts or tacho rolls or god knows what ‘the agency driver did’ this time :imp:

On of the agencies i signed up with last year only handed me the contract to sign and got shirty with me when I wanted to read it. They had that clause and after discussing it with other agency colleagues and friends decided I didn’t like the t&c’s and as such was never available for work and never will be by ignoring offers of work

truckyboy:
Winseer…a couple of points, there is no such thing as under insured…you either are…or you are not… unless you mean third party only…
Fraud…no such thing in these instances…fraud would only occur when the owner claimed from his insurance, and also from the agency…

At our company we employ a lot of agency, the damage to our equipment is astronomical, we have exhausted our claims via the insurers, and therefore have to pay for most damage with cash.
So good luck to the haulier concerned, who may be in the same boat, and wants to cover his costs, his first port of call is the agency.
Why should drivers damage a truck negligently, and expect someone else to foot the bill, even in this case the poster was blaming the posts on the pavement ■■?
We have had agency fill up trucks with red diesel, and NO you cannot tell VOSA and pay the difference anymore…the truck has to be drained, the filters, lines etc have to be cleaned out, thats a days work lost for that truck, and no redress to the driver or agency, if it was me, i would tell the agency…no more work for you…and it happened twice, 2 different agency drivers, weve had doors ripped off, tyres ripped to bits 3 on one trailer, side damage, rear damage, the list is endless, and the trucks and trailers are 3 yrs old, someone has to take the blame im afraid, and who else but the driver, if he damages the truck…he should pay and not expect someone else to.

so if your own drivers have a scrape they have to pay for it too? its not just agency drivers at asda we had 1 guy pull off the pumps 4 times while the hose was in the tank he kept his job! its what insurance is for they dont limit you on number of claims and common sense would say dont have the driver back! i know a royal mail driver who drove for 20 years accident free and hit a similar post while reversing as it wasnt in his view accidents happen! i can see the adverts now wanted hgv driver no more than 6 points £8 per hour but if you have an accident all damages will be recovered from you!

truckyboy:
someone has to take the blame i`m afraid, and who else but the driver, if he damages the truck…he should pay and not expect someone else to.

Are you seriously suggesting that whenever a truck gets damaged the driver should pay for the repairs ? :open_mouth:

god forbid you rip a front n/s corner off…it`ll take till xmas to pay it back on some of the rates they pay.

tachograph:
Are you seriously suggesting that whenever a truck gets damaged the driver should pay for the repairs ? :open_mouth:

only agency drivers,coz it is they who cause all the damage. :wink:

truckyboy:
Winseer…a couple of points, there is no such thing as under insured…you either are…or you are not… unless you mean third party only…
Fraud…no such thing in these instances…fraud would only occur when the owner claimed from his insurance, and also from the agency…

At our company we employ a lot of agency, the damage to our equipment is astronomical, we have exhausted our claims via the insurers, and therefore have to pay for most damage with cash.
So good luck to the haulier concerned, who may be in the same boat, and wants to cover his costs, his first port of call is the agency.
Why should drivers damage a truck negligently, and expect someone else to foot the bill, even in this case the poster was blaming the posts on the pavement ■■?
We have had agency fill up trucks with red diesel, and NO you cannot tell VOSA and pay the difference anymore…the truck has to be drained, the filters, lines etc have to be cleaned out, thats a days work lost for that truck, and no redress to the driver or agency, if it was me, i would tell the agency…no more work for you…and it happened twice, 2 different agency drivers, weve had doors ripped off, tyres ripped to bits 3 on one trailer, side damage, rear damage, the list is endless, and the trucks and trailers are 3 yrs old, someone has to take the blame im afraid, and who else but the driver, if he damages the truck…he should pay and not expect someone else to.

Would you pay if you damage one of yours then?

truckyboy, perhaps your boss should consider using employed drivers, that way he can be sure that the drivers of his vehicles are up to it.
If he wants the work done on the cheap then he must suffer the consequences.

commonrail:

tachograph:
Are you seriously suggesting that whenever a truck gets damaged the driver should pay for the repairs ? :open_mouth:

only agency drivers,coz it is they who cause all the damage. :wink:

mmmm
As an agency driver I went to one job and did the walkround and found a mudgaurd hanging off and a 5th wheel ramp missing.
I reported this to the TM who said I must have just done it as it was OK before. I had been on site about 15mins so he could have argued I had time…
I pointed out the cctv and asked him to take a look…
:laughing:

commonrail:

tachograph:
Are you seriously suggesting that whenever a truck gets damaged the driver should pay for the repairs ? :open_mouth:

only agency drivers,coz it is they who cause all the damage. :wink:

Perhaps he should use a better agency rather than the cheapest :smiley:

del949:
truckyboy, perhaps your boss should consider using employed drivers, that way he can be sure that the drivers of his vehicles are up to it.

Oh, I dunno, I was an employed driver when I did this…

Harry Monk:

del949:
truckyboy, perhaps your boss should consider using employed drivers, that way he can be sure that the drivers of his vehicles are up to it.

Oh, I dunno, I was an employed driver when I did this…

Epic … fail.

Winseer:
If a driver is to be liable for damage, then either the agency, haulier or both are under or not insured. If the firms ARE fully insured, and are attempting to recover additional monies from the driver, then this is also Fraud.

Often companies have a significant insurance excess these days. In any event, fraud would only take place if the company misrepresents the extent of any recovery possible from a third-party when making their insurance claim - if a company says it cannot recover losses from the driver, agency or other third-party, but recovers losses without the insurance company’s knowledge, that would be fraud. There is no fraud if the company recovers what it can from its insurers, having told them exactly what it can recover from third-parties. So long as there is full disclosure to the insurance company, it makes no difference if the amount recovered from third-parties, especially through claims in contract against the driver or agency, is greater than the insurance excess.

Winseer:
Wages Theft, Fraud, Breach of Contract, and demanding money with menaces are all examples of laws that may well have been, or are about to be broken here. :open_mouth:

I would imagine for example, that the agency are now going to confiscate outstanding wages towards this so-called bill. :frowning:
This would be an example of theft, if it is done without your consent in a signed by YOU contract - ie NOT a contract signed between agency and haulier!

The common law rule of incorporation will almost certainly hold anyone signing a contract to all of its terms, even if they did not read those terms before signing. However, any employer seeking to rely on a clause requiring damage payments should expect that clause to be interpreted contra proferentem, that is, it will be interpreted so far as is possible against the interests of the employer. In other words, a damage clause will be interpreted by the courts in the way that is most favourable to the driver without actually departing from the words of the contract.

Even if there’s no explicit contractual term about damage, drivers who provide their services as a limited company and possibly those who are self-employed may fall foul of the section 13 Supply of Goods and Services Act 1982 implied contractual term that services supplied in the course of a business must be carried out with reasonable care or skill. This could leave self-employed drivers (and, for that matters, agencies) liable for driver damage in breach of contract. (My cursory check of case law didn’t dig up any authorities on whether the self-employed are ‘a business’ for the purposes of SGSA 1982, though IÂ suspect they are bearing in mind the definition of ‘business’ in s. 18(1) of the Act includes ‘profession’).

Section 2 of the Unfair Contract Terms Act 1977 invalidates clauses attempting to limit negligence liability in some cases. In other words, clauses attempting to exclude s. 13 SGSA 1982 liability may be of no effect.

The important lesson here is that anyone dealing as a business, possibly including those who are self-employed, may be responsible for negligence damage in breach of contract, even if there is no explicit contractual clause about damage.

Absent explicit contractual terms about damage or a s. 13 SGSA 1982 claim, the company or agency can probably do very little. The common law tort of negligence doesn’t help the company or agency, as damage to the truck would be pure economic loss, which can only be recovered in contract, not in tort.

Winseer:
Claiming money from the driver when a parallel insurance claim has already gone in would be insurance fraud.

Not necessarily. There would, as IÂ said, only be fraud against the insurance company if a false declaration was made about what can be (or has been) recovered from other parties. In any event, the commission of insurance fraud does not negate any claim against the driver.

Winseer:
Breach of contract applies if there is nothing in the contract that says the agency can do this to you directly.

Not every contractual clause is explicit in the contract. As I said earlier, drivers offering their services on any other basis than being employed may find they are ‘a business’ for the purposes of the Supply of Goods and Services Act 1982. Drivers who offer their services as a limited company are definitely ‘a business’ for the purposes of the 1982 Act.

Winseer:
The contract between agency and haulier however is a different matter, and does not apply to the driver. Attempting to make third-party contracts apply to the driver is also attempted fraud & breach of contract combined! :smiling_imp:

The Contracts (Rights of Third Parties) Act 1999 allows the benefit but not the burden of contracts to be passed to third parties in some cases. Of course, this means that liability for damage cannot be passed on - it’s burden.

Winseer:
Contact the county court and apply for winding up petitions against both companies (warning sent via your solicitor’s letter) if a full refund of stolen wages, your legal overheads, and severance pay (since you won’t be working there again regardless!) is not made within 14 days of receipt of the recorded delivery letter. :smiling_imp: :sunglasses:

A winding-up petition could only come way down the line. You would have to obtain a county court judgment for the debt owed and attempt to enforce it unsuccessfully (i.e. employ bailiffs) before winding-up was an option. You can’t go for winding-up on the basis that you believe you have a claim - you first have to prove that claim in the eyes of the law.

Winseer:
The poor publicity may well bring the firm down in any case, as who wants to do business with a firm with outstanding debts & a winding up petition before any criminal matters are even considered?

Here you really have gone off into the fanciful. The likelihood of a winding-up petition being obtained is very low - if a firm believes they have a defence, they’ll try it in the County Court. If their defence fails, they’re going to want to settle the CCJ so as not to dent their credit rating too much or run up pointless extra costs in bailiffs fees.

If the firm feels they have no defence, they’re likely to settle rather than letting the matter get to court.

Winseer:
If the agency or haulier want drivers to take on their own liabilities, then they should be paying wages that reflect that.
I’m guessing here that this isn’t the case. :angry:

Strange how adverts still persistently say “6 points ok” when applying for the work in the first place eh? :smiling_imp:

As always, it is a matter of judgment as to whether to enter into a contract. Not carrying out your “due diligence” before signing could cost you dear.

As with all my posts about the law, these are just the thoughts of a law undergraduate, whose knowledge of contract and tort is limited, and is certainly willing to be corrected if I’m wrong. Switchlogic, if you’re reading, you’ll encounter most of this stuff in Unit 14 of your current course.

bigvern1:

truckyboy:
Winseer…a couple of points, there is no such thing as under insured…you either are…or you are not… unless you mean third party only…
Fraud…no such thing in these instances…fraud would only occur when the owner claimed from his insurance, and also from the agency…

At our company we employ a lot of agency, the damage to our equipment is astronomical, we have exhausted our claims via the insurers, and therefore have to pay for most damage with cash.
So good luck to the haulier concerned, who may be in the same boat, and wants to cover his costs, his first port of call is the agency.
Why should drivers damage a truck negligently, and expect someone else to foot the bill, even in this case the poster was blaming the posts on the pavement ■■?
We have had agency fill up trucks with red diesel, and NO you cannot tell VOSA and pay the difference anymore…the truck has to be drained, the filters, lines etc have to be cleaned out, thats a days work lost for that truck, and no redress to the driver or agency, if it was me, i would tell the agency…no more work for you…and it happened twice, 2 different agency drivers, weve had doors ripped off, tyres ripped to bits 3 on one trailer, side damage, rear damage, the list is endless, and the trucks and trailers are 3 yrs old, someone has to take the blame im afraid, and who else but the driver, if he damages the truck…he should pay and not expect someone else to.

Would you pay if you damage one of yours then?

My concepts of “under-insured” essentially mean that you cannot claim for the full set of damages set against it.

I cannot imagine any firm who have had an incorrect fill with red diesel to admit it and do something about it if they didn’t have to. Essentially, most firms would “let it ride” on the basis that there is only a very small chance of a vehicle having their tanks dipped by VOSA by the time the diesel has been used up. Red diesel is essentially a declared duty free diesel, not chemically different beyond the addition of a red dye after all. Misuse of red diesel won’t harm a vehicle, but represents duty/tax evasion, which is illegal. Hard-pressed firms won’t be stripping down engines to remove it unless they have reason to believe that they are under close VOSA scrutiny already. VOSA are not exactly hot on jumping on people working 84 hour weeks and freely admitting it on here are they? Both employer and employee are breaking the at very least the spirit of the law here, as opposed to using red diesel on the road, which is ‘breaking the law of the spirit’ if you like!

A lot of liabilities from drivers can be reduced by only admitting zero points 5+ years experience staff. Of course, there are a shortage of staff of that quality, and firms feel they cannot afford such luxury. You get what you pay for!
In my mind, as soon as insurance companies cotton on to the fact that liability insurances are often abused by firms, there might come a time in the not-too-distant future where pay for quality drivers has to rise, or more firms are driven under by uninsured damage… Un-insured because the insurance company won’t wear it anymore.
A better-quality driver would by then have become the cheaper option.

Pay a Self-Employed driver around £20 an hour, and he’ll be quite happy to cover all his own damage I’m sure! :sunglasses:

Truckyboy/djw - a few thoughts on law interpretation:

I always thought that if you pay a court for a winding-up petition, then you get one! Bailiffs are appointed by the court, and anyone else claiming to be a bailiff NOT appointed by a court is bogus. The trigger is “non-payment of a debt”.

If you are correct about a court not having to “grant” a winding-up petition paid for in full up-front by the plaintiff, then everyone in the country with credit card debts could welch them overnight, and never have to worry about being made bankrupt - because the court won’t ‘just grant it’ (if your interpretation is right, and mine is wrong) unless the card company can prove the debtor owes the money - very hard to do without original signed paperwork nowdays… I can see where you’re coming from, but how come there isn’t a deluge of plebs all pushing for a “debt walkaway” in these hard times?

Are debtors - be they firms or individuals really beyond the reach of bankruptcy courts nowdays? :question:

I obviously stand to be corrected here, as I’ve never bankrupted anyone myself, nor been bankrupted by anyone including myself (Perhaps bankrupting oneself is the only way to BE made bankrupt today?) :open_mouth:

Most people pay debts they can’t afford because they’re afraid of court orders, bailiffs, being made bankrupt, and all the asset-stripping costs that go with it. With Atheism being more and more popular in this day and age, the moral imperative to repay debts no longer applies. I would argue that this latter point is what motivates many firms to act in a dishonest manner both towards staff and the law. Fear of being caught doesn’t cut it. Moral imperative doesn’t cut it. Personal conscience MIGHT cut it. :neutral_face: - I’m sure there are some steadfast honest people out there in positions of power - somewhere… :cry: