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Use of smartphones by drivers: prevent liability!

maandag 14 december 2015

Recently, there was an article in Nieuwsblad Transport on a test performed by transport insurance company TVM, intended to improve safety on the roads. According to the article, research had shown that in many cases (or, according to the article, in no less than 71% of accidents) distractions play an important role, which distractions include the use of smartphones.

In addition to a safety issue, this is an important liability issue for transport companies.

Even if using (or even holding) a telephone while driving a motor vehicle has been forbidden by law for years now, as the employer, the transport company is obliged to give the driver the instructions reasonably required to prevent the driver from suffering a loss in the discharge of his duties.

In performing his duties, the driver is obliged to – to the best of his ability – see to his own safety and health, and that of others. In this context, ‘to the best of his ability’ means ‘based on his training and the information and work instructions provided by the employer’.

Therefore, it is important to provide clear (safety) instructions, for example in the form of company regulations and a safety manual.

The transport company must subsequently monitor compliance with the instructions for safe and healthy work. Possible methods for that include – among others – toolbox meetings, performance reviews and random checks.

If a driver does not abide by the instructions, the transport company must take measures. The measure must be proportionate to the possible danger to people and the surroundings that is involved in the failure to honour the agreements. The measures may range from a warning (oral or written) to a sanction (fines or, as a final resort, dismissal).

In addition, it is important to make the driver aware of the possible consequences (by including the sanctions in the instructions), and for the transport company to keep a record of what it has done to persuade the driver to follow the rules. Finally, it is important not to let the safety policy “slide”, to avoid creating a culture of toleration.

When it comes to distractions, this means that the transport company must expressly forbid drivers from using smartphones while driving, and must attach consequences to violation of this prohibition. It is also important to inform drivers of the risks involved in such behaviour.

In the absence of such a prohibition, sanctioning policy and training, the transport company may be held liable for the consequences of an accident in which – for example – it is determined that the driver was using his smartphone right before the accident. The company may in fact be held liable not only for the consequences for third parties, but also for the (health) consequences for the driver himself!

Further information

For additional information please feel free to contact Peter de Graaf.

Peter Verheijden

commercial cooperations, mergers and acquisitions, employment law and employer representation 

+31 (0)10 209 27 75
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Justin de Vries

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