Corporate Insights Podcast | Bridge Strikes with Chris Powell and Elliott Kenton

Transcript Chris Powell: Hi. I'm Chris Powell. I'm a Partner and road transport regulatory solicitor at Weightmans. I've been practicing for over ten years now, exclusively in the field of transport regulation and operator licensing, and that means my clients are mostly HGV and PSV operators. And any operator, really, any company that operates a fleet of trucks or buses as part of their, their business. And so I advise clients throughout all aspects of transport operations, and large part of that, of course, is being the key liaison between the client and, of course, the regulator, which in this case is the office of the traffic commissioner. Elliott Kenton: Hi. I'm Elliott Kenton. I, like Chris, am a regulatory partner and solicitor specializing predominantly in the transport and logistics sector. Like Chris, I act for clients regulated by the office of the traffic commissioner. So, effectively, as Chris has outlined, those that operate heavy goods vehicles, hauliers, passenger service vehicles, so bus and coach operators, and any company that operates large vehicles as part of their transport operation. I do have a wide practice. So in addition to the transport regulatory element, I also act for clients subject to criminal investigation, and that will typically involve an incident that may have taken place for these clients either on road or off road, for example, at a client's distribution center or depot. What's important to understand is that these regulatory investigations are often weave together. So an example of this is the client may have had a serious incident which ended in injured an employee in one of their depots. I will assist in the immediate aftermath of that incident, undertake an internal investigation with the client, often with Chris, and act for them in any subsequent criminal investigation and prosecution. When a client is under any sort of investigation, we will also liaise with the office of the traffic commissioner and notify them of that incident as this may go to an operator's repute. Chris Powell: And we're here today to discuss subject of bridge strikes. This is one of the key risks really to any business operating large vehicles. It's actually one of the main reasons why operators from the smallest one man band operation all the way up to a multinational FTSE one hundred with a fleet of hundreds of vehicles or even thousands. It's one of the main reasons, those operators can find themselves called before the office of the traffic commissioner and that's very often the point at which Elliott and myself will get involved. Elliott Kenton: But the first question to ask is what is a bridge strike? And a bridge strike is an event that occurs when a motor vehicle, in the context of what Chris and I are talking about, a large vehicle usually impacts with a bridge at a location where the railway passes over the road or the road crosses a railway. A common misconception and one that I often speak with clients about is that a bridge strike event does not occur unless there is some damage to the bridge or the vehicle. If a vehicle has any sort of impact with a bridge, however minor, that will constitute a bridge strike, and the correct procedures will need to be followed. Those procedures at the most basic level is a reporting obligation. The operator has a duty to notify the police of any collision with infrastructure. The company also has a a reporting obligation to Network Rail. Operators need to be clear on who will report the bridge strike to the authorities in the immediate aftermath of a bridge strike. And although it is common for drivers to do so, it is important that it is made clear within the company where the reporting obligation lies. This is often codified into a instant response protocol within the transport or fleet team, which outlines who should report the bridge strike and any internal escalation procedures. At Weightmans, myself, and Chris are commonly asked by operators to draft and assist with their instant response protocols but, of course, in this context is specific to bridge strikes, but also will cover other instance that a operator may encounter such as road traffic collisions, for example. Chris Powell: Following a bridge strike, one of the key questions as Elliott's, identified is how and in what manner should this be reported to the office of the traffic commissioner? An operator as a condition on their license, standard condition to notify relevant convictions and matters that could impact upon the company's good repute. And, clearly, a collision with infrastructure is something that the regulator would certainly consider, to fall within that category. So we would encourage that report be made. That report has to be made within 28 days. However, as soon as the incident happens, the clock is effectively ticking, and we've come across several instances which the police will network well, will notify the regulator directly themselves. And so we tend to encourage that this is reported by an operator on an interim basis as soon as possible. But the traffic commissioner will inevitably want further information as to the procedures you have in place to prevent bridge strikes happening and the circumstances that led to the bridge strike itself. Therefore, the company should take some time to investigate the bridge strike, and we'd encourage that lawyers get involved both at the notification stage, but also crucially at the investigation stage. A traffic commissioner will very often ask to see the investigation reports, and therefore, they're really crucial documents. And an investigation can be conducted on a legally privileged basis. And this means that the investigation materials and its findings are protected from third party disclosure, and it provides the company with some time to properly conduct that investigation, understand what the root causes are of that bridge strike. And following that investigation, we work with clients on the preparation of a report to the traffic commissioner, which provides further information relating to the bridge strike and the what happened and the investigation. And there are some examples of operators failing to report a bridge strike, and in our experience, this can certainly be problematic. As previously mentioned, the traffic commissioner will usually find out about bridge strikes regardless. Sometimes if it's not from the police, if it's not from Network Rail, it might even just be a disgruntled member of the public. So in this regulatory framework, getting ahead of the issue and being transparent with the regulator will very usually pay dividends, but, of course, this is something that you would want to be taking legal advice on, right at the earliest stage. Elliott Kenton: Once the traffic commissioner has been notified of a bridge strike, they can do one of two things. In some circumstances, the traffic commissioner may be satisfied that no further action is required and or issue a warning via correspondence. Usually, that's in the context of where company or an operator has, followed what Chris has just outlined, prompt reporting, investigation, and a report showing their operations to prevent bridge strikes. However, they the traffic commissioner may be concerned by the bridge strike event, and they may call the operator to a hearing. This can be in two forms. The first could be a preliminary hearing where a traffic commissioner has some concerns and wishes to explore these at a public hearing. At the end of that hearing, if the traffic commissioner remains concerned, they can call a more formal and substantive hearing known as a public inquiry, where the traffic commissioner can take regulatory action against the license holder. This can include a curtailment of the fleet of vehicles, which means reducing the number of vehicles that an operator has either indefinitely or for a time limited period. The traffic commissioner may impose a suspension where an operator cannot operate any of their vehicles for a time limited period, or in the severe cases, a revocation whereby the operator licence is taken away from the operator and they cannot operate their vehicles at all. There could also be orders of disqualification for holding an operator's license for a period of time. A preliminary hearing or a public inquiry will often be joined with a driver conduct hearing. That is a separate hearing before the traffic commissioner to determine a driver's entitlement to their vocational license following a bridge strike. A bridge strike will result in a driver conduct hearing, and the regulatory starting point for a bridge strike is a revocation and disqualification from holding a vocational license for six months. At that hearing, the driver will have an opportunity to tell their side of the story. And as you can imagine, it's not uncommon for a driver to apportion blame to the operator, given what's at stake for them. Chris Powell: From our experience of bridge strikes, we tend to see a number of themes arise, time and time again in the sort of cases that we deal with. The first thing, of course, is the approach that the regulator takes, and that's always a robust one. This is an real systemic issue in the transport and logistics sector. There is a bridge strike in the UK roughly every six hours, and each of those carry quite some consequences. So the traffic commissioner has been taking a robust approach as a regulator in recent years. The senior traffic commissioner has written a series of strong warning letters to operators for failing to do or to prevent bridge strike incidents and warning operators that the ramifications involve and include being called to disciplinary hearings, regulatory hearings as Elliott's outlined. Secondly, bridge strikes are largely preventable. A significant cause relates to a lack of driver training. We've seen operators where there's been no specific training on bridge strike prevention, where training is only provided to perhaps a certain category of driver such as an employed driver as opposed to an agency driver. Or in some cases, the training provided is really little more than a tick box exercise. So training needs to be interactive, it needs to be frequent, and it needs to be recorded. Thirdly, technology. Technology may well be the future to avoiding bridge strikes, but it is not the complete solution. A lot of operators will happily invest in expensive technologies, including, interactive satnavs with low bridge detection warning systems, laser devices, geofencing, all sorts of things. And this, of course, is to be commended, but we would always advise that the human element should not be disregarded in all of this. So providing simple equipment like height sticks, educating drivers around different types of vehicles they may operate, human based routing, all of that, is important as well and accompanies the technology solutions there. And it's important to note that where technology solutions are being used, these are done so, responsibly, and there's proper thought given to the fitting of this equipment, the calibration of it, the maintenance, the training out of it, and making sure that it's fit for purpose. And these, rules around, ADAS systems and additional fitment systems such as this are set out in industry rules and guides, including, of course, the DVSA guide to maintaining roadworthiness. Elliott Kenton: And, really, how can Weightmas assist you in the event of a bridge strike? Well, firstly, Chris and I often endorse being as proactive as possible and trying to prevent a bridge strike event before it occurs. Of course, as I've outlined before, we are often asked to assist clients with the preparation of policies and procedures that will include an instant response protocol tailored to bridge strikes. So that in the unfortunate event that the operator does have a bridge strike event, they know what to do, and that, of course, will need, to be stress tested by the operator. Of course, inevitably, bridge strikes do occur very frequently, and we are able to assist from the incident itself. That will include undertaking an internal investigation for clients following a bridge strike event and, of course, notifying the office of the traffic commissioner as Chris has outlined. Really, we can provide a life cycle of support from the bridge strike event all the way up to the public hearing that could be a preliminary hearing or a public inquiry. So in the unfortunate event that you do experience a bridge strike, please do reach out to us for support. Chris Powell: Final point I'll add to that, Elliott, is that we've talked a lot throughout the course of, this podcast about these regulatory hearings, about public inquiries, about preliminary hearings. We would always recommend that if these are, proceedings which are new to you or your team, then certainly having a mock public inquiry or mock preliminary hearing, is a very, very valuable training exercise because not only does it allow your team to understand what the experience of one of these hearings would be like in the event onward to happen, but, of course, it focuses the mind and make sure that it doesn't happen in the first place because the sort of factors that get looked at in these, mock hearings are the sort of matters that your team need to be aware of and will help them avoid situations like this. Elliott Kenton: Well, thank you very much for listening. Please do reach out if you do need any further assistance.