Accident with company car - is it 'negligence'

[maartjebaabes]

Hi, I tried to research this myself but I can't see anything which answers my question. Hopefully someone who knows this area of law can point me in the right direction.

A close friend works where they have 'pooled' company cars. They used one but unfortunately had an accident. No-one was hurt.

The insurance company decided it was at least in part my friend's fault. So the employer's insurer paid the claim and the employer paid the excess. Friend agrees that they were at fault.

Under the terms of the employment contract, there's a clause that says that the employer must pay for damage to property arising from 'negligence' including car insurance excess.

The employer has now indicated that they will be taking the excess out from the salary in monthly instalments.

My friend is very low paid, and this hurts them. However it's an amount which doesn't warrant a lawyer's fee and they're not a pro bono poster child.

I think that there is quite a line between fault in an accident, and negligence. If so, and they were not negligent, I want to help them pursue the reversing of this, hopefully without going to a formal grievance.

What do you think? Is there a case where there is precedent for employee negligence or is there a common law definition against which I could test ?

Even if your friend does owe them money, I'm pretty sure they can't take money from your salary unless this is explicitly stated in the driver declaration (something like you agree to the company deducting any money owed from your salary should x situation arise). It's quite normal for companies to expect drivers to cough up for excess or fines on pool cars unless it's really not their fault, although they may sometimes apply discretion.

In terms of what constitutes negligence - I think if the friend has gone against what the average person would normally do, like giving way/stopping at traffic lights/correct speed etc. then you're unlikely to have a case. I would check the wording of whatever they've signed first as this would at least give them time to appeal or arrange an affordable repayment plan if they've not explicitly stated the salary thing.

I think a fault accident where the person say caused the accident by ie not leaving enough stopping distance would be considered negligence. However you can still have a fault claim and not be negligent this would be something like a tree falling on the car or the car catching fire. Both would be considered a fault claim with an excess to pay but your friend would not be negligent, therefore not expect to pay the excess in this case.

How much is the excess? Is that amount documented?

The insurance company decided it was at least in part my friend's fault.

I would help you friend to write up a summary of the circumstances of the accident, including what the insurance company's statement re "at least in part" actually meant, in real terms.

Despite the insurance policy having been claimed against, the employer will need to take the facts into consideration. For ex, if the decision was a 50/50 'fault' ie knock-for-knock, which is possible given their "in part" comment then you could reason with the employer that a 50% contribution would be fair, especially as they are a low paid worker.

If the company policy states that the employee must settle the excess irrespective, then they may enforce that condition, but they could be flexible if the facts are presented and a strong case put forward .

The key thing is trying to prove it wasn't negligence, as a partial 'fault' accident could arguably include an element of negligence in insurance terms.

I think asking your friend to pay is harsh, especially if she is required to drive pool vehicles in order to do her job. This is more appropriately addressed by them assessing her suitability to drive, is she safe, is she being allowed to continue driving, is this a conduct issue. Personally I think this is what the insurance is for and unless it is clearly documented somewhere that she would need to pay then it needs challenging. The consequences are that employees may refuse to drive pool cars for their jobs.

At work we assess on a case by case basis whether the incident is negligent or not and therefore warrants disciplinary, but the employee will always have to pay the repair costs if the insurance deems them to be at fault.

It is in all drivers contracts that this is the case. Legally the company can only take a certain amount from salaries monthly (dont know the figure / percentage, sorry), so it's often paid back over several months.

The only difference might be that:

1. The people driving the company vehicles are full time workers earning more than minimum wage.

1. The payments are taken out of bonus schemes, rather than basic earnings.

This means the company complies with the above mentioned maximum deductions limit.

You need to give details of the accident, Will help to determine between fault and negligence (aka careless driving).

Hi thanks for all your helpful replies.

In the accident my friend turned left onto a main road and was hit by a car driving faster than the speed limit. So both were at fault to some extent but the other driver had right of way and was 'there to be seen'. If there were a clear precedent or explanation of where fault becomes negligence that would help, Steve.

THe point about minimum wage is interesting - I'll look into this further.

The point about

Other drivers speed is irrelevant as unprovable. You're friends at fault - poor observance when joining a road. Negligent? Nope, absolutely not. It's a very common occurrence.

You might want to post on www.pepipoo.com too, it has motoring lawyers, police, judges etc on its forum.

I would be wary of assuming a legal definition of negligence is automatically the right one- the employer isn’t pursuing any kind of legal claim against the employee.

This is a contractual issue, and it sounds as though no examples are given in the contract as to what defines negligent behaviour for the purposes of establishing whether a deduction is appropriate/possible under the contract.

Negligence legally is about failing in a (legal) duty of care, but negligence can also mean carelessness. The employee would have to ultimately bring a claim for unlawful deduction from wages on the basis that pulling out in front of an approaching vehicle with right of way was not negligent behaviour.

I wouldn’t want to be making that argument!

How much is the excess? Is there any internal precedent about how ‘negligence’ is usually defined for the purposes of that contract clause? For example if the employer don’t normally deduct insurance excess in the event of an employee being at fault in an accident that would help.

Negligent? Nope, absolutely not. It's a very common occurrence.

That logic doesn't follow - just because a lot of people drive that way doesn't stop it being defined as negligent driving. In fact, going on this legal definition, negligence is, by its very definition, "common" :

Negligence is the most common tort, and can be defined as conduct which falls below the standard required to protect others against unreasonable risk of harm. Once a duty of care is established, any breach of that duty resulting in financial or personal injury falls under negligence law

It doesn't matter if it's a common occurrence
It doesn't matter what speed the other driver was going at the time.
Based on the Highway Code, it is very clear that the right of way is always a driver proceeding along a main road. Drivers on side roads must always stop and give way to the oncoming traffic and only enter onto the main road when they are certain the road is clear.

OP it is impossible for us to predict whether your friend's employer will come down heavy on this and collect the full excess, but based on your update, they may well do, because your friend was in the wrong according to the U.K. Highway Code, which is the most consistent and reliable way for insurance companies to assess and apportion blame for an accident.

Thanks, flowery, you've more or less answered the question.

The term 'negligence' in the contract is not further defined, so any employment law precedent would certainly be useful. The argument with the employer would be by reference to the legal construction of the contract, although for a £1000 excess no-one is going to actually instruct lawyers.

There are plenty of employment law precedents for negligence on the part of the employer, but those won’t help you because the employer has a well-established legal duty of care that the question of whether their behaviour was negligent can be assessed against.

This is different. There won’t be a precedent about employee behaviour being “negligent” because no such claim will have been brought against an employee. The tests for employee behaviour will be whether or not an element of the employee’s conduct constituted gross misconduct.

The most viable way of challenging this would be unfairness, if the excess isn’t usually deducted, or examples of when deductions have or have not previously been made.

The only element of the contract which is unclear is what the employer would define as being negligent when deciding whether to make a deduction. To bring a claim for unlawful deduction the employee would have to assert that it was not reasonable (always the key in employment law) of the employer to find pulling out in front of a vehicle with right of way to be negligent. I don’t think there’s any way the employee is going to successfully make that argument tbh. It was certainly careless and dangerous. It is also perfect common and usual and reasonable for an employer to deduct excess when an employee’s poor driving results in an insurance claim.

She turnes out of a side road into a road. This means she is entirely at fault in lae. It does not matter (in legal terms) what speed the car on the road she turned unto was going. She had to ensure the road was clear when she tried to pull out. It wasn't. The company insurance would have been.liable for damage to the other car too. She is therefore liable to pay rhe excess under the terms of her contract. She can.of course negotiate how much she needs to repay each month.

You are starting from a false premise. You believe there is a line between fault in an accident and negligence. There isn't. As far as the law is concerned, if you are at fault you were negligent. If you were not negligent you cannot be at fault. To put it another way, negligence means that one driver failed to do something they should have done (or did something they should not have done), resulting in an accident causing damages. In this case your friend failed to properly check that the road was clear before pulling out. Like it or not, she was negligent.

In your first post you ask about the legal definition of negligence. The legal definition of negligence is that someone has injured or caused a loss to another through careless or reckless behaviour. In this case your friend was clearly careless, so she was negligent within the legal definition.

Your friend isn't going to get anywhere arguing about whether or not she was negligent.

I believe, though happy to be corrected, that no one can be paid less than minimum wage for hours worked. So it might be worth your friend calculating how much they could pay before it brought it to less than £8.21 per hour.

Company had an audit from HMRC, and as they were making a, lawful, deduction from employees salary which took them to less than minimum wage, they were advised that this was entirely unlawful, and would be required to make back payments (it was regarding a uniform deduction).

I would suggest that this is maybe easier to argue, rather than the negligent/not negligent issue.

The reason employers expect employees to pay the excess on car insurance policies if they are at fault is that it is statistically significant that company car drivers are not as careful as owner drivers, and often take more risks.

It is meant to be a message that if they are involved in an accident that turns out to be their fault, then they have to settle the excess. The employer will still have the burden of increased premiums the following year of course, due to having made a claim on their policy.

Is there not a distinction between 'at fault' and negligent? I'm sure, for example, in a hospital setting there is a difference.

In a driving situation negligent to me implies of a standard that would lead to a careless or dangerous driving charge. Not just an at fault accident.

If the excess is applied for any at fault accident I would expect the contract to use that wording rather than negligence.

In a driving situation negligent to me implies of a standard that would lead to a careless or dangerous driving charge. Not just an at fault accident

You may think that but the law disagrees. You are only liable for damages to someone else if you are negligent. If you have not been negligent you have no liability. Therefore, in a road accident, if you are at fault so that your insurer pays up, you have been negligent.

Just looking at this as I was checking history. I dont think I indicated my friend's gender, how many people assumed friend was a 'she'?

Bobble - men can have accidents too!

Agree with a PP that I don't think they can take deductions (apart from things like overpayments) to take your wage below min wage, although I'm not 100% on that. May be worth checking it out.

Sounds like your friend was completely at fault, so I think 'negligence' is fair

Whether they can deduct from wages - have a look at their contract and what was agreed on the car policy regarding repaying costs

They could phone ACAS for advice, but ultimately they will have to pay somehow

This thread is around 3 months old.

I don't think they can take deductions (apart from things like overpayments) to take your wage below min wage, although I'm not 100% on that

They can take deductions that take you below NMW for a number of things, one of which is something you've done for which your contract says you are liable. So in this case, since the OP tells us there is a relevant clause in the contract, the employer can take the money even if it results in the OP's friend going below NMW.