Tachographs - suitable stopping place - new court case, by Tim Ridyard, Solicitor, Barker Gotelee
An interesting new case has looked at a case of a driver who appealed against the decision of Magistrates to convict him after he had failed to take the required daily rest period as a result of moving to another suitable stopping place when he felt his unit and trailer were unsafe. In this case (Harding -v- VOSA (2010) Divisional Court 10 March 2010) the Court held that the Magistrates were correct in law in convicting the driver because the driver had failed to establish that he could enjoy the exemption to depart from the usual drivers’ hours rules because he failed to make a written record of the reason for this.
You will be aware that a driver may exceptionally be permitted not to comply with some of the drivers’ hours rules by relying on Article 12 of Regulation 561/2006. This permits non-compliance with the usual rules if it is justifiable and in the interests of road safety. However, such instances have to be exceptional and the driver must endorse the tachograph chart/print out with the reason for the departure from the usual rules at the stopping place.
In this case the driver was carrying an abnormal load. He had started his journey at 06.10 hours and he wanted to stop at a layby suitable for an abnormal load but it was full. He therefore moved to the next layby which he regarded as unsafe because his tractor unit and trailer rocked as vehicles drove by. He reinserted his tachograph chart to find another stopping place, which he duly did. However, the rest period he took was 8 hours 2 minutes, not a minimum of 9 hours. He accepted he had made no written endorsements for the reasons for moving his vehicle and stated that what he did was in the interest of road safety. The Magistrates convicted him and the case was appealed to the High Court by the driver.
The Court stated that the Magistrates were correct in their findings that the driver fell outside the Article 12 Exemption as he failed to make a written record of the reason for breaking the rest rule and the requirement to keep such a record was mandatory under Article 12 of the Regulation.
This case confirms that if ever a driver wishes to enjoy the Article 12 Exemption then he or she must clearly comply with the basic requirements of Article 12 which is to make a written record for the reason. A failure to do so will mean there is no platform for the driver to justify departure from the rules. All operators and drivers should also be reminded that Article 12 is intended to deal with exceptional situations and repeated endorsement on the reverse of tachograph charts on a regular basis will create a clear impression that a driver is simply utilising Article 12 for personal flexibility, not as an exception.
It seems that he didn’t go over his driving hours, but cut his break short; “However, the rest period he took was 8 hours 2 minutes, not a minimum of 9 hours.”
I didn’t think the exemption allowed for a shorter break; only an extension to driving time.
Santa:
I didn’t think the exemption allowed for a shorter break; only an extension to driving time.
you are correct - it doesn’t BUT it does allow for the REST to be taken in FULL outside the 24 hour period
If a driver with no reduced daily rests available was held up by a motorway crash for example and they got to 16 hours of ‘duty time’ then the 11 hours of REST must still be taken
He was never going to win, he didnt make a written statement explaining the move.
I wonder if he defended himself ? because a good solicitor should of told him he had no chance.
I think the lesson is - write it down, you know when you are going to infringe but in a case such as this if he had endorsed the chart with his reasons it would have been taken into account as a defence.
makes no sense, surely he’s gone over his max driving hours to find a safe ■■■■■■■■■■■■ or why would the fact he’s had to move come into it? but to then reduce your rest period so you can leave at your planned time the following morning is crazy!
if he’d just wrote on the back of his chart the reason for the over run and then took the full 9 hours, he’s committed no offence.
It doesn’t give any more detail on the offence except for the fact he started at 06.10 and only took 8h 02m daily rest.
But as it looks like he parked up and booked off in an unsuitable place within his time and then drove up the road later that evening is plainly taking the ■■■■
btw - it (Art 12) allows you - under certain circumstance - to depart Articles 6 to 9, which without looking, are the rest, break and maximum driving hours requirements.
So to get this into perspective,
it took him 8 hours and 2 minutes to make a conscious decision that :- he regarded as unsafe because his tractor unit and trailer rocked as vehicles drove by.
5 failings here imho ,
did not pre- plan route as an abload properly (including options for suitable park up areas within time limits)
it took 8hrs + 2 mins to make that conscious decision
failed to make a written entry
did not contact local authority of his predicament as an ab-load.
could have wound down the trailer legs to assist the trailer from rocking whilst parked.
Admittedly , he may have parked up at a time period where that road route was light traffic , and it then became heavily traffic at a later time - say rush hour commuter period - (some 8hrs +2 mins later granted), so that may have affected his judgement.
As an ab-load, he could have contacted the local authorities (ie, police) and sought their advice / recommendation due to his predicament.
Above all , they got him on a technicality, the rest just unfortunately didnt help his case .
Drivers move vehicles after booking off for a variety of reasons.If the chap in question had made a decision to move then on his own head be it. As a former gaffer,I would have agreed that he had the right reasons to move but he should have noted it on his card/printout. I would have also said “have the statutory rest and sod the customer” My view is that the driver is the man at the sharp end and he makes the decisions as long as he aint taking the ■■■■.
Always,always,MAKE A NOTE ON THE CARD AND COVER YOUR BACK!
trux:
So to get this into perspective,
it took him 8 hours and 2 minutes to make a conscious decision that :- he regarded as unsafe because his tractor unit and trailer rocked as vehicles drove by.
The way I read it he made the decision quicker than that, moved the vehicle to a new parking place and remained in the new place for 8 hours and 2 minutes before resuming work. Or his 24-hour period, since the start of his shift, finished after being in the new parking place for 8 hours and 2 minutes.
trux:
So to get this into perspective,
it took him 8 hours and 2 minutes to make a conscious decision that :- he regarded as unsafe because his tractor unit and trailer rocked as vehicles drove by.
The way I read it he made the decision quicker than that, moved the vehicle to a new parking place and remained in the new place for 8 hours and 2 minutes before resuming work. Or his 24-hour period, since the start of his shift, finished after being in the new parking place for 8 hours and 2 minutes.
If he has only managed 8 hours and 2 mins within the 24 hour period, even if he continued resting for a further say, 1-2 hours, then what is the situation regarding resuming work or how do you deal with this (if you have gone beyond 15 hours or have no 9 hour reduced rest periods remaining)?
woodlands:
what is the situation regarding resuming work or how do you deal with this (if you have gone beyond 15 hours or have no 9 hour reduced rest periods remaining)?
The full 11 hour REST is taken and the reason is written down as per article 12 of the EU regs
No reduced daily rests available
Bad hold up on motorway for example
Get to first available safe stopping place
Time on duty now 16 hours from starting
11 hours REST taken
All relevant info put on Card or printout ASAP and deffo before restarting next shift
Although the REST is not taken within the 24 hour period, the driver does not gain a time advantage.
OK , so i may have misinterpreted how it was or how it reads , not sure , theres 2 ways of reading it. Irrespective of whether it was 58 minutes or 8hrs + 2 mins when he moved , for safety reasons , whichever way you read it. Doesnt matter if it was a 24hr period or he had split his rests or was on a weekender, or had already taken 2/9s + 2/10s, or was 5 minutes from home/yard , whatever , the fact remains :-
The technicality was and is, is that he was convicted for failing to do a written entry ,
and any other statement evidence was just circumstantial and didnt go in his favour clearly.
A hard lesson and may seem petty i grant , but thats life.
If you want to cover your nether regions … make a written entry … simples.
I’m assuming that after he moved then his shift was a total of 15hrs and 58 mins so the offence was not getting daily rest within the 24 hrs from start of shift (?) hence my question that ROG answered as this has happened to me even with 22 hrs on rest after that shift so it must me written on the card. Seeems a bit pedantic if he has taken a ‘full’ rest after but doesn’t say in the OP.
So ‘make a written entry’ as Trux says is the answer and never mind the cost of the till rolls…
although it is usually advised to write an explanation on your tachograph or printout. i always use a diary, my argument is that it is more permanent and is less likely to be damaged or fade.
i have used this on six occasions, and there has been no problem.
You must keep a written record. it is no good trying to tell them “oh it was because of this or that” 2 weeks later.
the prosecution must prove that you didn’t care about the regualions, wilfull and recless disregard for the regulations, is enough to secure a conviction.
if you don’t write down your reasons, then how else can you convince vosa, a police officer, a magistrate or a jury, that you are telling the truth. the only record they have, is one that says you have broke the law, and nothing else.
even if it’s a pack of lies, write it down, they won’t know any different. trust me.
the only time i will be in the [zb], is if they have lie detector at bamber bridge.
