Advice and guidance on the application of road traffic legislation to roads in docks
SIM 05/2008/03 (Version 2)
Summary
This SIM updates and replaces SIM 05/2001/53. There have been a number of serious and fatal accidents recently involving vehicles on roads in and around ports. It is not always clear what legislation applies to such roads, and the relative roles of the HSE and the police in any investigation. This SIM draws attention to the various forms of legislation and guidance on road traffic in docks, and should be read in conjunction with other existing guidance on HSE's policy on investigation of road traffic incidents.
Introduction
1 Road traffic legislation is complex, frequently amended and can apply in full or in part, within the confines of dock, harbour or port premises. The main legislation is the Road Traffic Act 1988 as amended. The extent of the Act and its relevance, duties and the requirements it imposes will depend upon a number of factors, for example who has access to the road.
2 The legislation creating the Port Authority may include requirements relating to the application of none, some or all of road traffic legislation to the dock roads (paragraph 15). The different types of Port Authority are described in paragraph 10 of SIM 05/2007/05. The legislation may also include the ability to set local byelaws, some of which may apply to road traffic matters.
3 Several ports in England and Wales have their own independent police forces established by their own legislation. Each Port Police Force will have duties towards enforcing any road traffic legislation that apply to the dock roads and this may be documented as a working protocol between the Port Police and the Port Authority. Further information about Port Police. Twelve ports currently have their own police forces:
- Belfast;
- Bristol;
- Dover;
- Falmouth Docks;
- Felixstowe;
- Harwich International;
- Larne;
- London (Tilbury);
- Manchester Ship Canal;
- Mersey;
- Milford Docks; and
- Tees & Hartlepool.
4 For ports that do not have their own Port Police, there may also be in place a protocol between the Port Authority and the local Police force establishing what activities the local Police force can undertake on the port.
5 Health and safety legislation including the Docks Regulations 1988 (Safety in Docks; Docks Regulations 1988; Approved Code of Practice with Regulations and guidance) and Workplace (Health, Safety and Welfare) Regulations 1992 will also apply to work-related vehicle use and movement on dock premises. However, inspectors should note that much of the Docks Regulations has been revoked or overtaken by more recent legislation, and that the Approved Code of Practice & Guidance (COP25) "Safety in Docks" is out of date. Inspectors should refer to the relevant legislation such as the Workplace Regulations when considering vehicle use and movement on dock premises.
6 There is no definitive answer as to whether road traffic legislation will apply to an incident on a dock road as each incident needs to be considered on its individual merit. You may need to seek the advice of the Legal Adviser's Office (LAO). To assist the LAO, Inspectors will need to establish:
- the legislation creating the Port Authority and its powers regarding dock roads;
- any local byelaws that relate to dock roads;
- the legislation creating the Port Police, its powers relating to dock roads and any written protocol between it and the Port Authority;
- if there is in place a protocol between the Port Authority and the local Police force.
7 The Port Authority has control over who operates in and to/from the port and they should ensure that the standards of driving, road condition, markings and signage, speed control etc are suitable for the vehicle and pedestrian movement through the port. Reference should be made to the standards used on public roads.
Operational policy in respect of road traffic incidents
8 Inspectors may be notified or called to assist the police in respect of a road traffic incident in a dock. However, before commencing the investigation, they should refer to the current guidance on investigating such incidents. OM 2009/02 Version 2 sets out the circumstances where HSE may have a role to play following a work-related road traffic incident and also outlines the circumstances where it might be appropriate for HSE to take formal action. In addition, OC 165/10 and the Work Related Deaths Protocol set out our policies and procedures in relation to a work-related death.
9 The Association of Chief Police Officers' 'Road Deaths Investigation Manual ' sets out the circumstances where the police should contact HSE following an 'at-work' road fatality (paragraph 14.2.8). As a general rule, the police will investigate all 'at-work' road deaths (and those likely to result in death) and will maintain primacy under road traffic legislation. They should contact HSE when the following criteria apply:
- there is sufficient indication that failures in safety management by the employer have significantly contributed to the incident and these failures cannot be addressed by the 'cause and permit' provisions in road traffic legislation and the risks are foreseeable and beyond the direct control of the driver; and/or
- there is a serious continuing risk (eg one that could result in a similar incident occurring in similar circumstances) which cannot be addressed by the police using road traffic legislation, or by another appropriate enforcing authority (eg Vehicle and Operator Services Agency - VOSA).
The Road Traffic Act
10 The Road Traffic Act 1988 as amended (RTA) applies to England, Scotland and Wales. In simple terms, the Act applies to vehicles on the road where the public have access, however in practice this can be a complex matter to resolve.
11 The Act contains definitions of a number of terms including that of a "road". For England and Wales, Section 192(1) of the Act defines a "road" as: "any highway and other road to which the public has access and includes bridges over which a road passes." For Scotland, Section 192(2) of the Act defines a "road" as having the same meaning from the Roads (Scotland) Act 1984 being: "any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, a road passes, and any reference to a road includes a part thereof".
12 The Road Traffic Act 1991 extended the scope of dangerous driving to include "other public place" as well as "road". Further guidance on the 1991 amendments can be found in OC 789/4.
13 There is a significant amount of case law in respect of what is a "road", "public access" and "other public place", however it is likely that the RTA applies if the answer is 'yes' to the following:
- Is it a road?
- Do the general public (see paragraph 14) have access? Most Port Authorities have a statutory duty to ensure free access to a dock or quayside.
- Is the access at least tolerated by the owner or proprietor of the road in question?
14 Care must be taken to prove that the general public have access, and not merely a special class of general public eg access is only permitted to those visiting the docks on business. If only a special class of general public is permitted access, it is likely that the RTA does not apply, however legal advice may be required.
Port Authority Acts and Regulations
15 Port Authorities have their own Acts and many of these include requirements relating to road traffic on dock roads. These often extend specific sections of the RTA and subsidiary Regulations that were in place at the time of the creation of the Port Authority. Where these sections of the RTA have since been repealed, they are substituted by the equivalent sections of the current Acts by virtue of Section 17 of the Interpretation Act 1978.
16 There are many Port Authorities in Great Britain and it is not the intention of this SIM to list all of the Acts and various amendments relating to the Authorities. Inspectors should confirm with each Port Authority its current legislation and whether road traffic legislation applies. However, to illustrate some of the issues and complexities, reference is made to the British Transport Commission Act 1961.
British Transport Commission Act 1961
17 The Act applies to Associated British Ports (ABP), the successor to the British Transport Commission.
18 Section 26 of the 1961 Act defines a "dock road" as any road, pier, wharf, quay, bridge work or land which is situated within any dock or harbour premises of the Commission.
19 Section 26 also creates a number of offences as per the RTA 1960 in respect of dock roads. The offences relate to Sections 1 to 3, 6, 9 to 11, 13 to 16, 24, 77, 97 to 98, 110, 201, 218 to 219, 223, 225 to 226 and 230 of the Road Traffic Act 1960. These Sections include such offences as death by reckless or dangerous driving, reckless and dangerous driving, careless and inconsiderate driving, leaving vehicles in dangerous positions, speed limits etc.
20 The offences defined under the RTA 1960 are now substituted by the equivalent sections of the current RTA.
Docks Regulations 1988
21 Pertinent sections of the Dock Regulations 1988 that deal with vehicles and traffic management include:
- regulation 2 interpreting certain words and phrases used within the regulations including definitions of "dock operations", "dock premises" and "vehicle";
- regulation 11 requiring employer to authorise who can drive and operate powered vehicles and lifting appliances;
- and regulation 12 requiring vehicles to be properly maintained, a safe means for vehicle movement to be provided with adequate arrangements to control traffic including proper signs and markings.
Workplace (Health, Safety and Welfare) Regulations 1992
22 Pertinent sections of the Workplace (Health, Safety and Welfare) Regulations 1992 include:
- regulation 2 interpreting certain words and phrases used within the regulations including definitions of "workplace", "traffic route" and "public road";
- regulation 12 requiring floors of workplaces and traffic route surfaces to be suitable for use;
- and regulation 17 requiring workplaces to be organised so that vehicles and pedestrians can circulate safely and traffic routes are suitable for use.
23 It should be noted that these regulations do not apply to ships - Regulation 3(1a).
Further guidance
24 Ports Skills and Safety Guidance on Workplace Transport and Port and Terminal Planning.
25 Wilkinson's Road Traffic Offences - commonly regarded as the definitive publication on road traffic offences and often referenced in Court.
26 Crown Prosecution Service, Road Traffic Offences .
27 COP25 Approved Code of Practice & Guidance, Safety in Docks: Docks Regulations 1988.
28 L24 Approved Code of Practice & Guidance, Workplace health, safety & welfare: Workplace (Health, Safety & Welfare) Regulations 1992.
29 HSG136, Workplace transport safety: an employers' guide.
30 FOD Inspection Topic Pack, Workplace Transport.
Cancellation of instructions
31 SIM 05/2001/53 - cancel and destroy.