A key judgment on vehicle servicing leaves fleet operators exposed to new risks of claims and prosecution David Faithful explains the case.
Insurers to the fleet and motor industry have again seen the barriers of liability stretched by the Court of Appeal as a consequence of the tragic case of Girbash v Main Line Auto Engineering. This concerned a fatal accident which occurred after the apparent servicing of a van failed to rectify a brake fault which it is believed contributed to the crash. The original trial judge found against the garage.
The decision puts a greater duty of care on the shoulders of fleet managers and service or repair outlets. They have to ensure not only that essential maintenance and repair works are carried out in accordance with the vehicle manufacturers recommendations, but also that there is an audit trail in place to prove what has been done, when and by whom.
The case was referred to the Court of Appeal primarily on the ground that the garage had no evidence that it had actually serviced the van, although conceding that details of the vehicle were entered in the appointment diary. It argued that with no records confirming that it had worked on the van the trial judge was wrong in finding not only that it had worked on the vehicle but it had negligently failed to spot and rectify the rear offside brake. Technical evidence confirmed that the offside brake was leaking fluid and had coated the brake drum in black grease.
The judge said that if a proper 12,000 mile service had been carried out the brakes should have been thoroughly checked, as indeed would have all safety systems.
The principle advanced by the garage was essentially that without an audit trail showing evidence that it had worked on the vehicle a claim against it could not succeed.
Circumstantial evidence
A great deal of the judgment in this case revolved around circumstantial evidence of whether on the balance of probabilities the vehicle was indeed delivered to them, or whether the claimant had overslept and failed to deliver the vehicle at the appointed time. Sadly the case turned into a bit of a lottery, the outcome dependant upon whose recollection the court accepted as being the most likely.
Of course none of the debate over whether Main Line had indeed worked on the vehicle would have been necessary if the garage had kept a proper record of its involvement with the van. If it was correct that the claimant had failed to deliver the vehicle on time this should have been recorded in the garage diary. If the vehicle was fully serviced then the items checked should have been specifically noted.
Main Line lost the appeal and there will now follow an assessment of damages which are likely to prove to be a substantial burden to both the garage and its insurers.
By following certian guidelines (see box), in the event of an accident the authorities will be able to follow an audit trail containing evidence of health and safety compliance by fleet managers and anyone else coming into contact with the vehicle.
How to minimise exposure to claims and prosecution risk
Fleet managers
- Always ensure that your vehicles are serviced on time
- Ask the service provider to confirm that they employ qualified mechanics and that the vehicles are serviced as recommended by manufacturers
- Ensure that any known faults with a vehicles safety systems, such as brakes steering and tyres, are highlighted to the service provider
- Request a full written report after servicing or repair - do not accept a tick-box report form
- Require drivers to report defects on all vehicles not just commercial ones.
Garage service providers
- Never assume that a vehicle when booked in for a service or repair will actually turn up - if it does not, make sure the reason why is recorded
- Check the mileage and comment if the manufacturer's service intervals have been exceeded
- Employ qualified staff
- Follow manufacturers guidelines to the letter and where possible supplement the checklists with comments boxes
- If staff are making value judgments on whether an item should be repaired or replaced carry out a risk assessment - if there is any risk to health and safety err on the side of caution
- If repair or replacement requires authorisation from the owner, lease company, insurer or fleet manager record this - when recommended work is not authorised get this in writing and issue a warning where health and safety may be compromised.
