Bus question for the legal eagles - Rob the Bus {P}
One for DVD, David HM et al,

Today I was allocated an 'R' reg Volvo double decker that is fitted with a retarder on the gearbox which aids braking. Basically, the retarder slows the bus through the gearbox until the final 15mph when the foundation brakes cut in. On this particular bus, the retarder was not working and has not been for a month or so. The foundation brakes were fine, but you always had to be aware that you were braking without a retarder as it requires extra effort.

My question is - what would be the consequences to me personally if I had an accident and it was found out that I was driving a bus that I knew had a faulty retarder? On every one of these buses, there is a switch in the cab that allows you to turn the retarder off, but the depot engineer decreed that this should be wired to the dash alarms so that if you attempt to switch the retarder off, you get a constant 'ping-ping-ping'. This is to discourage switching off of the retarder.

Over to you, guys...

Cheers

Rob
"Smoke me a kipper, I'll be back for breakfast."
Bus question for the legal eagles - Dwight Van Driver
RtB

Not my favourite subject as brakes involve a plethora of EEC Regs in addition to MV Con & Use Regs. Once did it for FiF and his green light and vowed never again.

Off the top of my hat, without research, then the retarder I presume is simil;ar in effect to a brake servo. (What happened to the Telmar system for buses and HGV's -electronic magnet braking via the prop shaft). If the retarder under Regs is a requirement then 10 to 1 there will be a requirement for it to be in good working order. If so using the bus without you will do at your peril. If not, then if the bus can comply with braking efficiencies other than with the aid of the retarder, under the Con and Use Regs, then it presumably will comply legally.

As to the effect and Chapter and Verse on the Law, the experts in this field live in your neck of the woods. On the left just before Kirkham Young Offenders Prison there is the VI Testing Station for PSV /HGV. Nip in and query while your kipper smokes.

Whilst some negligence, due to non functioning, may be attributed on the Civil side David HM will no doubt advise.

Sorry I cannot be more specific.

What do the T &GW say?

DVD

Bus question for the legal eagles - Miller
Hello Rob, seems your company is as bad as mine for running buses with potentially serious defects. I think once a defect like this is reported the operator is allowed a "reasonable" period of time to repair it depending on parts availability etc whilst still letting the vehicle out on the road in the meantime.

Bugbears at our depot include defective speedos (very common - supervisors try to bully drivers into taking these buses out on the road but it is not their licence at stake!), low floors that don't lower (very embarrassing for the driver!) and numerous minor faults that are reported again and again but never fixed, only bodged up to go wrong again a few hours later.

They are really no more than a cowboy operator running under an internationally known name!



I'm a loser, baby....so why don't you kill me?!
Bus question for the legal eagles - DavidHM
In terms of the criminal law, I will bow out and leave PU and DVD to their answers. Obviously this is without liability.

Civilly, I wouldn't say you have nothing to worry about, but in the real world it's unlikely that anything would happen to you. If you were acting on the instructions of your employer in driving a faulty vehicle, then there is no way in hell that they would either bother attempting to recover anything from you personally, or risk the bad publicity that such a case would cause.

There was a case in which a lorry driver was held personally liable when driving Lister v Romford Ice and Cold Storage Co [1957] AC 555 and the employer's insurers recovered from the employee the damages paid to the victim. In that case though, the negligence was all that of the driver and not the employer and it seems that the liability arises from a duty to use reasonable care and skill in carrying out employment - and following the instructions from the employer to the letter would in my opinion shift the blame entirely to the employer.

The only realistic risk of you being sued personally would be if i. the victim of any accident thought that you were worth pursuing and ii. your employer and/or their insurers were bankrupt. Obviously that situation is highly unlikely.

This also assumes that you would have informed the employer within a reasonable time of a defect. If you simply carried on driving a faulty bus without informing anyone in authority, it's likely that you would have breached your duty of care, even if no harm actually came of it. Your contract of employment may also have something to say about liability towards the employer in certain situations.
Bus question for the legal eagles - Flat in Fifth
"Hello Rob, seems your company is as bad as mine for
running buses with potentially serious defects. [snip]

They are really no more than a cowboy operator running under an internationally known name!"


Seeing as it is the holiday season I'll just get you all worried by reporting an Air Traffic Control comm heard at first hand, jargon edited out for clarity.

Pilot: [call sign deleted to protect the guilty]: please contact my engineering department with the following message:

Our [safety critical system] is up the spout as reported week before last. Now the backup system has failed. We are operating on the second backup. We don't have another backup.

?!?

At the time I reckon the passengers would have been quite happy on a bus with a duff TELMA!
Bus question for the legal eagles - Pugugly {P}
Agree with DVD - the question is whether the bus would pass its Test, hugely complex issue, in the event of an RTC and a subsequent examination of the braking system could have consequences for both driver and operating company - the stakes rise as the seriousness of the accident - it could be deep p**h, very deep p**h - the prosecution would use the faliure of the maintainence of the device along with other issues to build a "culture" case, I agree wholeheartedly with DVD that the Union would be best placed to address this. (not legal advice etc atc)
Bus question for the legal eagles - Wales Forester
The bus would pass a PCV MOT test without the brake retarder working as the retarder is only there to assist braking and reduce brake wear, it has no effect on the overall braking ability of the vehicle.

PP
Bus question for the legal eagles - IanT
PeterPerfect's logic would imply that a faulty car brake servo would pass the MOT, since a faulty servo doesn't affect the overall braking ability - provided you can press the pedal hard enough.

But, of course, a faulty servo is an MOT failure.

Ian
Bus question for the legal eagles - DavidHM
I don't know the regs but what about a 1989 car with a faulty cat - i.e., before the more stringent emissions testing? It doesn't work but it meets the standards for the MoT test, so the car would pass on that point.

The MoT only checks what the tester is told to check and if the retarding function isn't on the list, it's not being tested. Until brake servos were part of the MoT, a car with a non-functioning one would have passed. All the vehicle has to do is meet the required standard, whether it applies to the performance or the individual part.

That is why there is a disclaimer on the back of the MoT certificate saying that the test has no bearing on the vehicle's fitness for purpose, only its ability to pass the roadworthiness tests on that particular day. It would also be all but impossible to prove negligence in driving a roadworthy vehicle that happened not to have all its features working.
Bus question for the legal eagles - SteveH42
Could be wrong, but I believe that it doesn't matter how old the car is, if it *has* a CAT, it must pass the test for CATted vehicles. I believe this is why some people get their CAT removed - so they can get away with higher emissions.
Bus question for the legal eagles - Wales Forester
My previous reply is a statement of fact and not my interpretation of the subject.
For those who are unsure what a retarder is let me describe it in laymans terms.
It is basically a device fitted to larger vehicles such as buses, coaches, lorries etc., to assist with braking and to therefore reduce brake wear.
There are different types of retarder, some work by slowing the propshaft by means of a large electromagnet surrounding it, others are fitted within the gearbox and work on a similar principle.
The retarder is more often than not operated by the use of the brake pedal but can be operated manually by use of a stalk.

A vehicle fitted with a retarder may well slow or stop marginally quicker than a vehicle without, but the fact that the retarder is working does not actually affect the power of the brakes, it is merely an assistance.

It is not correct to compare a retarder to a car brake servo. The servo is there to provide braking power whereas a retarder is there to compliment the existing air/servo assisted braking system fitted as standard to the vehicle.

In short one bus off the production line may be fitted with a brake retarder at the request of the bus operator, the next bus however may be specified without, it's all a matter of choice and when it comes to the PCV MOT test it matters not one bit whether a fitted retarder is in working order or not.

Hope that clears it up.

PP
Bus question for the legal eagles - Gen
Is that what hisses when a bus stops Peter?

PS Thanks for the description, I didn't know that.
Bus question for the legal eagles - Wales Forester
As for the hissing Gen, it'll either be the driver applying the handbrake or releasing his foot from a heavily depressed footbrake or alternatively it may be the air system regulating itself by blowing off some excess air.

PP
Bus question for the legal eagles - HisHonour {P}
>>.......... system regulating itself
by blowing off some excess air.


That seems to happen from time to time on this site!

M.
Bus question for the legal eagles - none
Peter Perfect is right. Many HGV's are fitted with exhaust brakes from new. Doesn't matter if they work or not, and a lot don't due to seizure - not a testable item.
Bus question for the legal eagles - HF
>>That seems to happen from time to time on this site!

>>M.

M?!! I hate to say it, Your Excellency, but surely you are not M in disguise? ;) Methinks you need a different initial, M'Lord ;)
HF


Bus question for the legal eagles - v8man
Whether or not all these retarders and servos are working or not, the simple fact of the matter is; your employer can not make you drive a vehcle you think is unsafe. Your licence and life is at risk. It baffles me though that a bus can pass an MOT with a malfunctioning retarder. Surely they are fitted because they are needed? I accept that they may reduce brake wear, but also, they must bring the bus to a halt more quickly?
Bus question for the legal eagles - neil
"the simple fact of the matter is; your employer can not make you drive a vehicle you THINK is unsafe".

Sometimes you lot don't listen so well!

Peterperfect has told you - succinctly and correctly, with a degree of modesty and technical assurance - what the position IS - not what he guesses it might be.

Here is one of those situations where, unlike many other facets of modern day life where 'your perception is your reality', the facts are simple and the perception irrelevant.

Your opinion is just that. Technically true to say your employer can't make you drive it if you THINK its unsafe - but he surely can make himself your ex-employer.

Retarders are optional extras and DO NOT make the vehicle stop quicker - they allow repeated or sustained braking without wear to moving wheel brake linings etc. To suggest they make the bus stop quicker is like saying the sidelamps make the headlamps brighter. (Yes, I KNOW that doesn't mean sidelamps aren't testable... but that's not my point!)
Bus question for the legal eagles - DavidHM
Technically true to say your employer can't make you drive it if you THINK its unsafe - but he surely can make himself your ex-employer.

Any dismissal for a health and safety related reason (not my phrasing here) is automatically unfair. What this means is that a refusal to breach health and safety rules cannot lead to a dismissal, although refusing to drive a roadworthy vehicle probably wouldn't be a pure health and safety issue.

Of course, that doesn't mean that an employer can't be subtle about it, but it is impossible to sack someone straightforwardly if the vehicle is unsafe or the driver at least reasonably believes it to be.
Bus question for the legal eagles - neil
So... if I THINK using a telephone is going to give me a brain tumour, I can refuse to use the phone at work? No, thought not!

I agre with what you say, it just doesn't answer what I said earlier - which is that what the employee THINKS is irrelevant - if the vehicle IS safe, he can be required to use it... or face the alternative, no doubt after warnings etc - but ultimately the sanction is there and is used!
Bus question for the legal eagles - neil
So... if I THINK using a telephone is going to give me a brain tumour, I can refuse to use the phone at work? No, thought not!

I agree with what you say, it just doesn't answer what I said earlier - which is that what the employee THINKS is irrelevant - if the vehicle IS safe, he can be required to use it... or face the alternative, no doubt after warnings etc - but ultimately the sanction is there and is used!
Bus question for the legal eagles - HF
Is it right then, for a driver of a publicly-run bus, or indeed any other vehicle, to drive it when he/she KNOWS it is unroadworthy? Who is going to be held to blame in the unfortunate scenario of an accident? The company or the driver?

There are bus companies around that, honestly Neil, just take the P. They are told by their employees that the bus is unsafe, and yet they insist on sending the same bus out day after day after day (ferrying our schooolchildren) rather than doing something about it. The drivers are under threat - drive it or you are out!

I've learned a little from my time in the BR. And one of the things I've learned is that every time I step into a public transport vehicle I just might be taking my own life into my hands!

We have a few bus drivers on our site here, and I'd be interested to hear more of their views on this.
HF
Bus question for the legal eagles - Rob the Bus {P}
HF - you're darned right. I'll not reveal who I work for as that would break the protocol of the site (and get me into trouble at work ;-) ), but I shall tell you a story, if I may?

The other day I had an elderly (F-reg) Leyland Olympian which had an automatic gearbox. This gearbox was clearly malfunctioning and had been for some time as I can distinctly remember reporting it before Christmas.

There were two things wrong - firstly the gearbox would hold onto gears (especially first) and not change up. The only way to get it to change up was to either lift your foot off the throttle, causing the bus to jerk violently, or use the kickdown on the throttle pedal which quickly becomes uncomfortable. The second problem was that occasionally, and without warning, there would be a four second delay between putting my foot on the throttle and the bus moving. This coupled with the first fault meant that, in my opinion, the bus was unsafe. I'd had several occasions when I was pulling out of a bus stop, thinking that I had plenty of time only for the throttle not to respond and the gearbox refusing to change up. Result - vehicle up my chuffer piloted by very annoyed person.

So, I refused to take the bus any further and requested a changeover. This was brought from the garage with bad grace, and off I went. On my way back, I passed the very same vehicle back out on the road. It had not been fixed, or even looked at, just given to the next poor sap.

This probably isn't going to reassure you, HF, but my company at least works on a 'run it til it breaks' policy. I have lost count of the amount of times a bus has gone out on the road leaking water, or with a dodgy turbo only for it to break down and need a tow in at a cost to the company of £300 a time - they scrapped the depot tug and refused to buy another one. It is this kind of logic that I find baffling.

Anyway, all being well I'm moving jobs soon. Same industry, different company. I just hope that they are better than the current lot. Couldn't be much worse....

Cheers

Rob
"Smoke me a kipper, I'll be back for breakfast."
Bus question for the legal eagles - teabelly
I'd report them to your local health and safety executive anonymously. They should decide to do a random spot check ;-)


teabelly
Bus question for the legal eagles - Miller
Rob your company is a carbon copy of mine with regards to running buses till they break etc and palming off defective buses on newer drivers who are scared to rock the boat with the depot forman/supervisors. If the vehicle inspectorate were to pay a suprise visit one morning they would stop at least 1 in 3 buses leaving the depot for serious defects IMO.



I'm a loser, baby....so why don't you kill me?!
Bus question for the legal eagles - Wales Forester
My my, what a lot of banter about buses, it's nice to know so many people are interested in this type of thread.

Rob I sympathise with your Olympian situation, we had a similar problem with a Lynx once which used to react to any throttle application when it felt like it, sometimes not at all!

I had a situation a few years ago when I refused to drive a Merc minibus which had a faulty horn, sometimes it worked, but the majority of the time it didn't and it got to the stage where some drivers, myself included, just refused to drive it point blank.
The horn button for those non Merc people out there is located on the end of the indicator/wiper stalk.
In the end they just bodged a separate horn button on the dashboard as they didn't want to spend £80 on a new stalk and that is acceptable on test.

The problem is that like most things these days, maintenance is done to a budget and it doesnt matter what the problem, that budget will not be exceeded. So when Rob's Olympian's air throttle finally gives up the ghost completely it'll get fixed - but not before. The phrase "let it develop" is something i've become accustomed to hearing throughout the bus industry when it comes to maintenance - sad but true.

PP
Bus question for the legal eagles - bighammerman
Having read all of the above postings i find it hard to believe the bus companies involved still have their operators licences. I am fleet manager for a medium sized haulage company , if we ignored drivers defect reports like bus companies seem to do we would have lost or had our licence suspended . I think a call to the VI or VOSA as it is now called's "tip off line" would start a move in the right direction.
Bus question for the legal eagles - Hugo {P}
We haven\'t even started on motor factors yet!

Just after I finished my MSc I had a short job driving for a well known national motor factor.

Such was the pressure to keep the vans on the road that I was asked to drive a van with a broken windscreen. Not your 5 inch crack either, this looked like it had been attacked by a baseball bat (or worst still Mark\'s aerial in that car wash!). I refused on the grounds that it was an unreasonable request to drive an unroadworthy vehicle. \"No problem Hugo\", I was given another van. A colleague who was not as assertive as me was told to stop messing about, get in a drive the ******* thing

If anyone feels pressured into driving a vehicle not fit for the road, he or she should contact the safety officer or rep for that workplace immediately. The Health and Safety at Work Act applies here and I\'m sure the HSE won\'t be too slow to at least serve improvement notices on the employers responsible.

H
Bus question for the legal eagles - none
Bighammerman,
I don't think that the VI would be interested in driver comfort items. They're only concerned about vehicle roadworthiness. An uncomfortable drivers seat wouldn't bother them - a loose one would! And as you know, drivers defect reports are sort of filtered, safety related items are usually dealt with promptly, others put back until time permits.

 

Value my car