10. Accident and legal procedures, and other non-operational matters
Guidance for driving examiners on accidents and legal procedures, and other non-operational matters
If the candidate’s vehicle is involved in an accident and the candidate shows no sign of stopping to comply with legal obligations, the examiner should inform them that they are required by law to do so and, if necessary, give advice about exchanging names and addresses. Bumper and mirror touches should be judged on merit. In most cases, provided there is no damage, these should not be treated as accidents.
If the candidate’s vehicle is rendered un-roadworthy, or compliance with legal obligations leaves insufficient time to complete the test, then the test should be terminated.
The test should also be terminated if the candidate indicates that they do not wish to continue or if the examiner considers it would be unwise to continue because the candidate appears to be suffering from shock or other adverse reaction or is unduly nervous.
If the test is terminated, and the accident was clearly and totally the fault of the candidate, a result end of test summary should be issued. If the accident was clearly not the candidate’s fault, then the test should be terminated without any result.
As per the Accident and Incident Reporting Policy, all accidents of any kind involving injury or damage must be reported to the Health and Safety team using the HS1 Incident report form.
Managers are accountable for ensuring that arrangements exist for recording all accidents and incidents where injury or damage has occurred within their areas of responsibility.
Examiners are reminded that the H&S incident report form might be used by the agency’s legal advisers in anticipation of legal proceedings against the agency or officials, and professional privilege may be claimed for it in appropriate cases. It should not be shown to the police or to any other person outside the agency. The Operational Delivery Manager should be notified immediately of any request for it.
The driver of a vehicle involved in an accident which causes damage or injury to any other person, vehicle, animal, or roadside property is required by law to stop, give their name and address and owner’s name and address, and vehicle registration details, and produce a certificate of insurance to any person who has reasonable grounds for requiring its production, or report the accident to the police as soon as reasonably practicable, and in any case within 24 hours and produce a certificate of insurance.
If an examiner is injured in an accident on test, they are advised to exercise their rights under these provisions and obtain the necessary insurance details at the time of the accident or as soon as possible thereafter, either from the parties concerned or from the police.
Separate instructions follow for England and Wales and for Scotland. If circumstances arise which do not appear to be covered by these instructions, they should be considered in the first instance by the HEO and the SEO. If it appears to them that further advice is needed, this should be obtained from Technical Standards.
The following instructions are based on the principles that:
- all reasonable assistance must be given to the police and judicial authorities
- examiners must remain impartial and avoid giving reason to be identified with the police or other parties
- a clear distinction is drawn between statements given to the police or other parties and reports which an examiner makes to the agency. Reports to the agency are made in confidence and are not for publication
- statements are confined to observed facts. A statement should not contain deductions or other expressions of opinion. Examiners must not prejudge or appear to prejudge matters, which are for a court to decide
Action to be taken by an eye witness of an accident
Examiners have the same duties and obligations as any other person going about their daily business. If they witness an accident during the course of their duties they should:
- if the candidate’s vehicle is involved, make themselves known to any other persons involved in the accident
- if the candidate’s vehicle is not involved, exercise discretion in deciding whether or not to stop and make themselves known to the parties involved. They should take account of the circumstances at the time and bear in mind such considerations as their responsibility towards the candidate, the presence of other witnesses, and the seriousness of the accident
Request for oral statement or interview
If an examiner is asked by the police to make an oral statement they should offer to submit a written statement instead. If the police persist in their request the examiner should comply, confining the statement to facts of what they actually saw.
In the case of a fatality, any request for an oral statement from the coroner or his representative should be met in the same way.
Request for written statement
Requests from the police or from, or on behalf of, any party involved in the accident should be met.
Legal proceedings
If legal action arises from an accident, the agency must act impartially. Written information or statements must be sent to all parties to a dispute. An examiner’s statement should be confined to matters of observed fact on which they are in a position to give evidence in court. It should exclude expressions of opinion and avoid the expression of any agency view or policy.
The statement should normally be submitted to the HEO, together with the request for it and the official accident report. The HEO will check the statement and forward the papers to the SEO.
Where an oral statement has been given to the police, and a subsequent request for a written copy of that statement is received from any party to legal proceedings, the SEO should pass the request to the police and request copies of the statement so that one can be sent to the enquirer and one retained on the agency’s file.
Interviews
Requests for an oral statement or an interview from any party to legal proceedings should be refused.
If, however, the other party continues to request an interview, the facts should be reported immediately to the SEO so that advice can be obtained from Technical Standards.
Attendance at court
Except when appearing in a case to which the Secretary of State, the agency, or the traffic commissioners is a party, or in a case brought by police or the director of public prosecutions, an examiner should attend court only when served with a witness summons or a subpoena.
Attendance in response to a witness summons or subpoena is compulsory
Receipt of a subpoena should immediately be reported to Technical Standards via the SEO.
Summons or subpoena to appear
Evidence given by an examiner in court should be confined to the facts. Witnesses are entitled to refresh their memory by reference to notes made by them at the time of the accident or incident. They should not refer to official reports or documents.
If pressed to express an opinion as to the cause of an accident, an examiner cannot refuse to do so, but must make clear that it is their personal view arising out of the observed facts.
Summons to produce documents
If an examiner is asked to produce a report or official document not available to the public, a note of the circumstance of the case together with the documents in question should be sent to the SEO who will seek advice from the treasury solicitor as to whether the documents may be released.
An official report or any document not available to the general public should not be taken to court by an examiner unless advice has been obtained from the SEO.
Expenses
Examiners who are called upon to attend court to give evidence in their official capacity are regarded as being on official duty. Travelling and subsistence expenses should be claimed from the agency under the normal rules.
Recovery of expenses from the court should be dealt with as follows:
- for attendance at court in connection with criminal proceedings, no claim should be made for recovery of expenses
- examiners summoned in connection with a private lawsuit should claim witness’s expenses from the solicitors who issued the summons. They should be asked beforehand for an undertaking that the proper expenses will be paid whatever the outcome of the proceedings. However, if such an undertaking is not given, the examiner must nevertheless attend court and claim the witness expenses later
Witness expenses should be based on the examiner’s gross salary and calculated as follows:
- gross monthly salary, (plus London weighting if applicable) divided by
- number of days in the month in question, multiplied by
- number of days in court plus travelling and subsistence expenses
The expenses should be scaled down appropriately for absences of less than a day. The amount of expenses that may be paid in county court cases is restricted by the county court rules. It is therefore important that the persons calling the examiner as a witness are informed of the amount that they will claim.
To avoid difficulties over the payment of claims an undertaking should, if possible, be obtained from the solicitors issuing the citation that the witness’s attendance fee and subsistence and travelling expenses will be paid. Any sums recovered should be remitted to the area office.
An examiner in Scotland is an ordinary citizen with a citizen’s rights and duties even when they are on official duty. They must be impartial and avoid giving reason to be identified with the police. The procedures in Scotland follow broadly those for England and Wales but there are differences in law and practice to be remembered.
Providing information
Examiners who have witnessed an accident should provide their name and address to anyone involved or any person, such as the police, who reasonably requires it.
Statements
If asked to provide a statement of what they observed, examiners should offer a written statement of facts, provided the requester has reasonable grounds. This includes people involved in the accident, solicitors, police officers, or a member of the Procurator-Fiscal’s department. If an interview (precognition) is requested instead of, or after, a written statement, examiners must comply. A copy of any written statement should be sent to the LDTM and, in civil cases, to other parties involved if requested.
Court attendance and expenses
Expenses for court attendance:
- official duty: Attendance at court is considered official duty. No claims for travel or subsistence expenses should be made on the court; these should be claimed from the agency under normal rules.
- civil action witness fees: If examiners are cited to appear in a civil action, they should negotiate a witness fee with the litigant or their solicitor, subject to the decision of the auditor of court in case of a dispute.
Calculating witness fees
S1. Gross monthly salary: Divide by the number of days in the month in question. S2. Multiply: By the number of days in court. S3. Add: Travelling and subsistence expenses.
Claims should be scaled down for absences of less than a day. Note that amounts payable are limited by court regulations. To avoid payment difficulties, obtain an undertaking from solicitors issuing the citation that the witness’s attendance fee, and expenses will be paid. Remit any sums recovered to the area office.
If an examiner sustains an injury, however slight, during working hours, a report must be immediately submitted using the HS1 incident report form.
All cases of physical assault, serious threats, and ‘drive away’ incidents with the examiner present against their consent must be reported immediately to the police and the LDTM.
Examiners must notify Customer Support on the examiner telephone line straight away following any type of assault or threat by a candidate, and a booking review marker (BRM) will be added to TARS to prevent the candidate from booking online.
A full written report of the incident should be completed on form HS1, providing as much details as possible (police ref numbers, number plate numbers, driving licence details of parties involved) and transmitted to the Health and Safety team via Microsoft forms. Additional information or photographs can be sent to reportanincident@dvsa.gov.uk.
If the assaulted examiner cannot make a report, the most senior examiner on duty should complete and send it.
All assaults must also be reported on form HS1 in the same way. The HS1 report must be submitted as soon as possible and within 24 hours if police have been notified.
If the police decide to prosecute, they should be assisted with statements or evidence. If the police do not prosecute, and the assault occurred due to the examiner performing official duties, DVSA will seek legal advice and pursue cases where advised there is a reasonable chance of conviction. Cases are considered based on evidence and seriousness. Examiners may seek support from TUS or institute legal proceedings through their solicitor. In Scotland, corroborative evidence is necessary. Prosecutions are by the Lord Advocate, carried out by the Procurator Fiscal service. Private prosecutions are rare, and the examiner cannot initiate court action themselves.
The Road Traffic Act mandates insurance for motor vehicle users against liability for death or personal injury to third parties, including passengers. An examiner is like any member of the public if injured due to driver negligence. An examiner, or their dependents if killed, can claim damages against the negligent driver. If negligence is not admitted, a civil action can be brought. Insurers usually pay agreed or awarded damages. If no valid insurance exists, the motor insurers’ bureau may cover damages and costs under certain conditions, including prior notice of intent to sue the uninsured driver.
If an examiner is injured due to negligence by both the driver of their vehicle and another driver, a claim can be filed against both. According to the staff handbook, damages awarded against a negligent driver may affect an injury benefit under the principal civil service pension scheme. An examiner pursuing a claim should comply with staff handbook provisions.
Examiners may arrange private insurance against injury or death during a driving test. Terms are between the examiner and the insurer. Payments under private insurance do not affect civil damages claims or civil service benefits.
If injured by a wrongful act, staff can pursue civil legal proceedings. The agency may provide financial assistance. Applications for assistance go through the SEO.
For examiners injured during official duties:
- notification: Inform the LDTM if legal proceedings are planned
- consultation: With prior approved application, the agency pays for consulting a solicitor to assess claim viability. Send the account and solicitor’s opinion through the SEO to HR Business Partner
- contributory negligence: Report defence claims of contributory negligence to SEO immediately. The agency will consider involvement extent
Police can require a person supervising a provisional licence holder to produce a licence and provide their and the vehicle owner’s details. An examiner, not responsible for supervision, should:
- explain they are a DVSA driving examiner conducting a driving test
- produce their identity card, and licence if available
- Ii no licence is available, offer to produce it within seven days at a nominated police station
Examiners must report to their HEO on receiving a notification to appear in court for a criminal charge, providing offence details and hearing date and venue. An agency representative will attend. If involved in an incident related to their driving, on or off duty, which might lead to prosecution, or if receiving a notice of intended prosecution, complaint, or fixed penalty offer, inform HEO immediately, providing incident details and any relevant information. Send a copy of the report to SEO for Grade 7 and Grade 6. Notify HEO and SEO immediately of all subsequent actions, such as:
- receipt of court proceedings notice or adjournment
- developments, such as pleading guilty by post, with a copy of the letter to the court
- case results
Failure to comply with these instructions may result in disciplinary action. All motoring offence convictions are subject to disciplinary review, potentially leading to termination. Automatic termination occurs if convicted of offences resulting in disqualification or involving drink or drugs, regardless of disqualification.
Examiners, like other civil servants, must treat any letter or document received in an official capacity as an official document. It breaches the Official Secrets Act to disclose it to unauthorised persons. This applies to letters received directly at test centres or passed to examiners. The agency decides on legal advice for personal or objectionable content. Information about candidates or instructors gained through official duties is confidential and cannot be disclosed without authority.
An examiner wishing to disclose official information or use official experience in outside activities must first obtain written HR permission through the SEO. Examiners must not publish material, deliver speeches, or write books without prior permission. Obtaining permission before negotiations with private publishers avoids copyright issues.
Examiners should not write to the press about official duties or participate in media broadcasts without prior authority from:
Engagement and Communications
DVSA
1 Unity Square
Queensbridge Road
Nottingham
NG2 1AY
Failure to obtain prior authority or permission is a disciplinary offence.
If the press or media gives misleading publicity about a driving test, an examiner aware of this, and identifiable from it, should send a report with the facts to their HEO and SEO. For press comments, include the press cutting with the publication’s name and date. This should be done promptly. Obtain related documents through the HEO and forward them with the report to refresh memory if needed.
Driving test centres may receive interview requests from the press or other bodies. Examiners are not authorised to grant these requests and should not commit the agency. Avoid appearing uncooperative by referring the caller to the DVSA press office at pressoffice@dvsa.gov.uk and notify the HEO.
Examiners have a particular responsibility to be constantly vigilant and alert to potential criticism at all times. Because some activities can place them very much in the public eye, they are required to obtain prior approval before taking up any outside activity, paid or unpaid. Written applications should be made through the line management chain to the SEO.
Examiners who wish to take up part-time employment will be required to comply with the conditions laid down in the DVSA guidance on the working time directive and secondary employment. Examiners who wish to perform special constable duties may do so subject to obtaining prior approval from the SEO.
When an approved driving instructor (ADI), who is currently on the register is employed as a driving examiner, from day one of their examiner training they must stop giving driving instruction and their ADI badge must be surrendered to their trainer. If they leave the agency they can apply to have their ADI badge returned as long as it has not expired, or an application is made to the Registrar within 12 months of the date of expiry. If they leave DVSA after this date their ADI badge cannot be returned.
An examiner who is retiring from or leaving the DVSA and intends to become an ADI and is currently conducting both ADI qualifying exams and ADI Standards Checks may apply for an ADI badge before they leave. They must not, however, give instruction on a professional basis until they have left the agency.
Note: This is subject to paying the registration fee, Disclosure & Barring Service (previously CRB) checks and making themselves available for standards checks following inclusion onto the ADI register.
If an examiner does not qualify to have their ADI badge returned or currently does not conduct the full range of ADI duties but intends to become an ADI after leaving the DVSA, he/she must pass the ADI qualifying examinations to gain access to the register. This will be at their expense.
Once a leaving date has been established, it is possible for staff to start the ADI application process before they leave the DVSA. Any driving examiner grade may apply to take the ADI qualification examinations during the last six months of their service. They must not, however, give instruction on a professional basis until they have left the DVSA. Applications to take the examinations under these arrangements should be made in writing through the Line Manager to the ADI Registrar.
As with all ADI applications the Registrar retains discretion on anyone being accepted onto the register of approved driving instructors.
A health, safety, and working environment manual containing advice and generic risk assessments that apply to the agency, prepared in consultation with the trade union side (TUS), is available in every permanent centre. The manual must be kept where it is readily accessible to all DVSA staff.
Examiners are provided with suitable protective clothing according to the circumstances under which they have to work. Enquiries relating to protective clothing (for repair and ordering) should be made through the examiner’s line manager.
Examiners should know the current fee for a test appointment but should not otherwise concern themselves with questions relating to fees. It is the responsibility of the booking section to ensure that candidates have paid for their appointments, and to advise on and implement the rules relating to the forfeiture of fees. Candidates, or others, who make enquiries relating to fees should be referred to the national booking number.
The council of the Institute of Advanced Motorists has agreed that the agency’s examiners are eligible for membership of the IAM without having to take the institute’s driving test. Examiners wishing to take advantage of this facility may obtain application forms from the LDTM or, in the case of examiners successfully completing the new entrant training course, the training establishment. The appropriate fee to cover the first year’s membership must accompany applications.