A tragic tailgate accident, where Petru Pop died after being crushed by an 1100 kg pallet of tiles, in High Wycombe in November 2018, might not have happened if pending Guidance for the safe use of tail lifts had been in place at the time, writes Tim Norris of Ashtons Legal road transport team.
This Guidance regarding the use and safety of tail lifts is still being discussed by the Department of Transport and industry associations, with possible publication at year end. It has rightly focused on weight limits though it seems HSE will likely not fix actual specific figures as limits. These have been limited to 750 kg by many Operators.
Should an accident occur during loading or unloading HSE will of course always consider weight capacity of tail lifts amongst many other factors in any investigation. In general these will include physical factors at the delivery site coupled with the design of the vehicle e.g. is there an alternative delivery method such as side unloading as opposed to using a tail lift. This is also effected by the site location and weight of the load, such as a house under renovation where there is no dropped kerb of drive way constructed to take a delivery of plaster or other compacted aggregates. Further considerations will be the condition of the tail lift and the level between it and the vehicle body. This will be influenced by road gradient adjacent to the delivery site and whether the driver can manoeuvre the truck into position to prevent toppling as the product is moved on to the tail lift. Weight reduction may be one consideration and splitting pallets, but is this going to be an option when cost and manual handling difficulties are a factor as opposed to having the flexibility of the use of a “Moffatt” on some vehicles to stack split loads?
All of these factors will be influenced by knowledge of the site location and its accessibility. The draft guidance, it is understood, suggests that “procedures need to be in place for the driver to follow where the goods cannot be safely delivered”. This should be read in conjunction with Section 2 (1) Health & Safety at Work etc Act 1974. Here an employer will fail to ensure health and safety where there is an exposure to a material risk to health and safety to an employee unless it can be shown that it was not reasonably practical to do more that was in fact done to satisfy the duty. In other words, all that was reasonably practicable was done to minimize or eliminate the risk to health and safety. The defence of ‘reasonable practicability’.
On a practical level Operators, and by definition the drivers, will need to have the necessary information about the site before arrival. The use of an app to provide such information (+ a photograph) may mitigate such risks, but ultimately the risk assessment lies with the body making the delivery. This coupled with a lack of prescription on weight limits make the possibility of enforcement action a real possibility should a full risk assessment not be carried out and an accident occurs.
