Decision

Decision for Douglas Bain t/a Bain’s Coaches (PM0000657) and ABC (Methlick) Ltd (PM0001603) and Douglas Bain, Transport Manager

Published 29 August 2023

0.1 In the Scottish Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Douglas Bain t/a Bain’s Coaches (PM0000657) and ABC (Methlick) Ltd (PM0001603) and Douglas Bain, Transport Manager

2. Background

Mr Douglas Bain t/a Bain’s coaches, as a sole trader under standard international operator licence number PM0000657, has authorisation for 12 vehicles. That licence has been in force since 1994. Mr Bain is also the sole director of ABC (Methlick) Limited which holds a standard international operator licence number PM0001603. That licence has been in force since October 1990 and authorises the use of 6 vehicles. Mr Bain is the nominated transport manager for both licences.

My office received reports from DVSA Traffic Examiner (TE), Jill Jarvis and from DVSA Vehicle Examiner (VE) Henry Mackie in relation to Bains Coaches. The reports allege various infringements on the part of the operator’s drivers that had not been identified by the company. It was also alleged that there were serious shortcomings in the compliance systems for drivers’ hours and maintenance used by the operator.

I was on notice that Mr Bain had attended a preliminary hearing and a public inquiry in 2019, following which the Deputy traffic Commissioner issued a warning.

I directed that Douglas Bain t/a Bain’s Coaches be called to public inquiry. Given the nature of the concerns, and Mr Bain’s sole directorship and role as transport manager of ABC (Methlick) Ltd, I directed that operator also be called to inquiry.

3. The Public Inquiry

The public inquiry called before me on 6 April 2023. Mr Bain was in attendance represented by Mr O’Leary, counsel. TE Jarvis and VE Mackie gave evidence remotely via MS teams.

A variety of documentation was produced by the operator in advance of the inquiry. I had regard to that in reaching my decision. An invoice in relation to a booking made for Mr Bain on a refresher CPC course in May 2023 was lodged on the day of the inquiry. However, as at the date of this decision, and despite several requests from my office, no certificate of attendance has been provided.

4. Evidence

I heard oral evidence form TE Jarvis, VE Mackie and Mr Bain.

TE Jarvis advised that she had carried out an investigation into the operator’s systems after a roadside stop had highlighted several instances of his vehicles being driven without driver cards inserted. She advised that DVSA had also received intelligence highlighting concerns around the operator’s transport operation.

As part of her investigation, TE Jarvis had requested drivers’ hours data from the operator. Despite repeated requests, the required documentation had not been provided. She advised that piecemeal documentation had been received late, but what was provided was incomplete and out of date.

Following Mr Bain’s initial failure to provide documentation, TE Jarvis made an unannounced visit to his operating centre. No one was able to provide her with the data she required. Her opinion was that neither Mr Bain, nor anyone working for him, knew how to use the computer software, let alone carry out any analysis. No analysis of driver hours information was being undertaken and it was clear that it had not been for a significant period. Mr Bain had allowed her access to the software during her visit and TE Jarvis had tried to download data for herself. However, she found there to be no data of any substance for her to view on the system.

TE Jarvis advised that during her visit she was made aware by a member of Mr Bain’s staff that they were having problems with the software. However, despite the repeated requests for data that had been made, Mr Bain had not brought that to her attention.

The small amount of data that TE Jarvis was able to gather during her investigation disclosed that drivers’ hours offences were being committed by the operator’s drivers. She knew the operator carried out service work and had asked him to specify which vehicles were being used for service runs to try and ascertain how much driving off card was taking place. However, that information was not provided either.

TE Jarvis advised that she had looked at the documents produce for inquiry and noted that some of the information she had requested during her investigation, such as driver CPC records, had been provided. She could not understand, therefore, why it had not been made available to her during the investigation. She advised that Mr Bain had told her that he was going to retire but understood that he had changed his mind since her investigation.

VE Mackie advised that he had carried out a maintenance investigation in relation to Bain’s coaches between September and November 2022. He told me that he had carried out an investigation before, in 2019, the outcome of which had also been unsatisfactory.

On this occasion, in September 2022, he visited the operating centre unannounced and spoke to Mr Bain. Mr Bain advised that the assistant transport manager was out on a job and therefore the vehicle records were not available for inspection.

VE Mackie attended again, unannounced, on 3 October 2023. The assistant transport manager was present and VE Mackie asked him if he could view the vehicle files. VE Mackie advised that Mr Bain had, however, instructed the transport assistant not to allow VE Mackie access to the files.

VE Mackie left, having agreed to come back on a specified date. He made a third, announced, visit on 11 November 2022 whereupon he examined 3 vehicles, reviewed the vehicle files and completed the investigation report.

A prohibition was issued in relation to one of the operator’s vehicles during the fleet check. VE Mackie noted that the maintenance documentation was not up to date or completed properly. Inspections were being carried out late. The MOT failure rate was twice the national average and safety critical defects were being identified at test, which indicated the preventative maitnenance regime was poor. VE Mackie was extremely concerned that brake testing was not being carried out as it should be for many of the inspection records had no record of brake testing. The operator’s roller brake tester was inoperative. It was also out of calibration as was the operator’s wheel torque wrench.

VE Mackie advised that several of the deficiencies found in 2022 had been highlighted during his earlier investigation, and of particular significance were the issues of record keeping and brake testing. It was of great concern to him that he had been prevented from accessing the vehicle files during his visit. He suspected that remedial action was being taken between his visits which in turn led him to believe that the operator knew things were not as they should be yet had done nothing until the DVSA visit. He also noted, when he eventually was given access to the documentation, that many of the safety inspections appeared to have been completed retrospectively.

VE Mackie advised that he had looked at a sample of the PMIs lodged for the inquiry. They appeared generally ok, with some minor issues. However, brake testing was still not being recorded properly despite all the advice given during the two previous inspections. It was still not possible to tell if the vehicles were undergoing any meaningful brake testing.

Mr Bain advised that he had been operator and transport manager since 1975. Bains Coaches carried out a mixture of work including private and school contracts. 12 vehicles were operated under that licence. ABC (Methlick) Ltd had 6 vehicles doing similar work. His wife had passed away in June 2020 and prior to that she had been dealing with the downloading and checking driver hours. His daughter also helped out for a time.

Mr Bain advised that he had hired an individual called Murray Cowie as an assistant transport manager in June 2020 after his wife’s death. Mr Cowie had worked for him previously and he had put him through his CPC. Mr Cowie had stayed for around a year but Mr Bain was not happy with his performance. When Mr Cowie left, he hired Billy Davidson to help out. He was supposed to oversee drivers’ hours and walkround checks etc.

When he got the request in from TE Jarvis he was unable to get the information from the computer. He couldn’t operate the computer. He had asked a consultant, Gary Hughes, to help but Mr Hughes couldn’t download it either.

Mr Bain advised that he became frustrated with the emails coming back and forward from TE Jarvis and largely stopped engaging. He went to Stonebridge who had supplied him with the system for recording and analysing drivers’ hours to ask for help. He denied trying to obstruct TE Jarvis in carrying out her investigation. He admitted that he had told examiner Jarvis he was thinking of retiring but had since changed his mind. He denied that he had done so in an attempt to evade regulatory action.

Mr Bain admitted that no proper downloading or analysis of drivers’ hours had been done for some time. Things had slipped and he was just too busy. Following the last maintenance investigation he had put in new roller brake tester. It was, however, broken and he was waiting on parts coming. The vehicles were having their brakes tested in a layby along the road from the operating centre. Mr Bain did not know what the guide to maintaining roadworthiness said about brake testing and could not explain how ‘locked wheel’ readings were being obtained during such road testing as his more recent PMIs indicated.

Mr Bain advised that he had been booked onto a TM refresher course. He had not done any transport manager refresher training before because he didn’t see the need for it. He had not read the senior traffic commissioner’s guidance but accepted that he should have. Mr Bain told me he was ‘thinking about’ entering into a contract with Stoneridge to download and analyse his drivers’ hours and had spoken to them earlier in the week.

Mr Bain denied that he had been obstructive with DVSA during their investigations. He acknowledged that the Deputy Traffic Commissioner had issued him with a warning in 2019 for failing to co-operate with police in dealing with anti-social behaviour on ‘party’ buses which he was operating, but denied that his behaviour this time was more of the same. There was ‘a right way and a wrong way’ to do things and VE Mackie should have asked him, not his employee, for documents when he visited the operating centre. He admitted telling his employee not to give the DVSA examiner documentation that he had asked for.

When asked about VE Mackie’s concerns in relation to the retrospective completing of maintenance documentation Mr Bain did not refute the allegations. He commented that ‘it was a job being right all the time’. He also accepted that there was no evidence before me at the inquiry of driver licence checks being carried out or evidence to demonstrate that driver hours were now being managed effectively.

Mr O’Leary submitted that there were issues of concern for me in this case. There were however, some positives. Things were clearly not right with the management of drivers’ hours, but Mr Bain had hired two people – one of whom was CPC qualified - to help out following his wife’s death. When the problems were brought to his attention, he sought external help to try and get things sorted.

VE Mackie’s report was not the worst of its kind and there had been no further MOT failures or prohibitions issued since VE Mackie’s final visit in November 2022. Mr Bain was booked on a CPC refresher course and was taking his responsibilities seriously now. The evidence allowed me to conclude that Mr Bain had not been obstructive with DVSA, rather he had displayed a misguided sense of affront when VE Mackie asked his staff for documents rather than him as the boss. His failure to comply with TE Jarvis’ requests were borne out of computer illiteracy. The 2019 inquiry focussed on different issues so I was able to afford Mr Bain’s attendance at that less weight in deciding upon the matters before me in this case.

Mr O’Leary submitted that this was a case which could be dealt with by way of a significant curtailment and undertakings. An audit undertaking was offered.

5. Consideration of the evidence and balancing

Mr Bain appeared before me in three capacities – as a sole trader t/a Bain’s coaches, as sole director of operator company ABC (Methlick) Ltd and as a transport manager. He manages and directs the transport operations of Bain’s coaches and exercises the same responsibilities in relation to the transport operation of ABC (Methlick) Limited. The corporate veil in this case is therefore easily pierced, and I find that Mr Bain’s actions can also be equated with that operator company.

I found Mr Bain to be a reluctant and unreliable witness. He spoke under his breath during much of his evidence and had to be prompted to provide full answers to many of the questions which were put to him.

Mr Bain’s evidence was that the management and analysis of drivers’ hours had been undertaken by his wife prior to her death in 2020. Thereafter he had employed Mr Cowie and Mr Davidson to help out. Mr Cowie had a CPC qualification.

However, it was clear from TE Jarvis’ evidence that no downloading of data or analysis was taking place at the time of her investigation and had not been for a considerable period. Periods of driving off card and drivers’ hours infringements were identified. VE Mackie’s evidence was that there were significant shortcomings in Mr Bain’s arrangement for the maintenance of his vehicles. Serious shortcomings which had been identified in 2019 were still evident despite DVSA advice and assurances being given by Mr Bain.

Those findings, coupled with Mr Bain’s very obvious lack of knowledge or understanding of the current rules relating to transport operation or his transport manager responsibilities, led me to conclude that there had in fact been no proper management of Mr Bain’s transport operations for a considerable period of time.

Mr Bain’s position was that he had delegated those responsibilities to others. Whilst a level of delegation of responsibility for certain tasks may be acceptable, it is incumbent on an operator and transport manager to oversee operations and ensure that the undertakings on the licence are being met. Mr Bain, grudgingly, admitted that he had not done so. However, he did not appear to accept that his failure to keep his knowledge or skills up to date was an issue.

Findings in terms of Section S.17(3)(a),17(3)(aa) and 17(3)(c) of the Act are made out in this case. In particular, the absence of evidence to show, even by the date of inquiry, that proper brake testing was being carried out or that vehicles were being properly maintained according to schedule led me to find that road safety and fair competition had been significantly compromised by Mr Bain’s actions.

However, perhaps the most serious aspect of this case was the allegations concerning Mr Bain’s failure to co-operate with, and obstruction of, DVSA officers in the course of their duties. Mr Bain directed one of his employees to withhold vital documentation from VE Mackie in the course of his investigation and failed to deny that there had been retrospective completion, and therefore falsification, of maintenance records.

I accept that Mr Bain’s computer illiteracy may have contributed to his failure to co-operate with TE Jarvis’ requests. However, he made no proper attempt to bring his difficulties to her attention and admitted to disengaging out of frustration instead. I also noted that documentation which had been requested by TE Jarvis without response, was later provided for PI.

Mr O’Leary submitted that I was able to find that Mr Bain was not being deliberately obstructive. Rather, he behaved as he did as a result of a misplaced sense of affront. I cannot accept that submission. His attitude at inquiry was one of arrogance rather than of concern for compliance and operating within the rules.

Affronted or not, Mr Bain chose not to co-operate with DVSA officers carrying out their duties. That is a matter most serious in its own right. However, there is also evidence of falsified documents in this case, I also consider it likely that Mr Bain’s failure to co-operate was also an attempt to hide his shortcomings and attempt to evade regulatory action.

Mr Bain knew that falsifying vital maintenance documents by post-dating them was wrong. When given the opportunity at inquiry, he failed to deny that the documents had been falsified. He is also an operator of many years’ experience. On any objective view, his conduct in allowing such falsification falls to be classed as dishonest.

Mr Bain’s actions have undoubtedly prolonged the risk to road safety that his transport operations have posed. His behaviour is entirely inconsistent with the obligation upon all operators to operate in a trustworthy manner. If I cannot trust Mr Bain to co-operate with the authorities, or to face up to and remedy shortcomings where they occur, then I cannot trust him to safely operate vehicles outwith the gaze of the regulator.

Moreover, Mr Bain’s obstruction and failure to co-operate is nothing new. He was given a warning following public inquiry in 2019 for failing to co-operate with the police in circumstances where his party buses were involved in anti-social behaviour. I therefore consider his behaviour to amount to a course of conduct.

Given my finding that Mr Bain’s maintenance documents had been falsified, I am unable to rely on any of the documentation produced by him for inquiry. There was, therefore, little evidence before me even at the date of inquiry to suggest that operations were now compliant. In addition, Mr Bain’s certificate of attendance at refresher CPC training was never produced so there is no evidence that he has actually undertaken much needed, and long overdue, CPD.

In balancing, I was able to find some positives. Mr Bain was an operator of longstanding. He had hired two people – one of whom was CPC qualified - to help out following his wife’s death. He had also, on occasion, sought external help to try and improve things. There had been no further MOT failures or prohibitions issued since VE Mackie’s final visit in November 2022. I also accept that the loss of his wife likely impacted on his ability to run his businesses.

Nevertheless, even balancing in the positives, I find that I am no longer able to trust Mr Bain. I simply did not believe his assurances that he is operating compliantly now. Despite a previous warning for failure to co-operate with the authorities, he has done so again in attempt to cover up his shortcomings. All the evidence points to the fact that Mr Bain simply does not believe that the rules apply to him. For those reasons, he can no longer be trusted to operate.

In NT/2013/82 Arnold Transport & Sons Ltd v DOENI the Upper Tribunal said:

“The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field…cutting corners all too easily leads to compromising safe operation. It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.”

I asked myself the question posed in 2009/225 Priority Freight: How likely is it that this operator will, in future, operate in compliance with the operator licensing regime? Mr Bain’s failures to co-operate amount to a course of conduct. He has failed to heed an earlier warning and much of his evidence was inconsistent and incredible. I therefore considered it highly unlikely that Mr Bain would comply in the future.

Mr Bain told me that regulatory action against his licence would probably mean the end of his businesses. He wanted to carry on and wasn’t ready to retire yet. The question posed in T/2002/217 Bryan Haulage (No.2) is therefore relevant: Is the conduct of this operator such that it ought to be put out of the business?” In reaching my conclusion, I also had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 3.

Mr Bain has clearly obtained a commercial advantage over other operators and compromised road safety by deliberately failing, for a significant period of time, to keep his vehicles in a fit and serviceable condition or to ensure that the laws on driver hours were complied with. He attempted to conceal his failures by falsifying documentation.

This was a bad case, then, in which dishonesty was a feature. The starting point for regulatory action was severe. I also take the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate a vehicle against this background. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative.

It is appropriate to find that Mr Bain has lost his repute as an operator. He is also a transport manager and given the findings of dereliction of duty and dishonesty in this case, it is not possible to separate his actions as such from that as operator. I refer to the case of Alistair Walter T/2017/55.Consequently, I also consider it proportionate to find that Mr Bain has lost his repute as a transport manager.

Operator licence number PM0000657 falls to be revoked pursuant to adverse findings in terms of sections 17(1)(a), 17(1)(b), 17(3)(a), 17(3)(aa) and 17(3)(c) of the 1981 Act.

There is one registered service in operation. I therefore order that my decision take effect at 23:59 on 20 September 2023 to allow for an orderly retendering of the registered service.

Given the piercing of the corporate veil in respect of the operations of ABC (Methlick) Ltd as explained earlier in this decision, and the fact that that operator no longer has professional competence, operator licence PM00001603 also falls to be revoked pursuant to adverse findings in terms of section 17(1)(a) and 17(1)(b) of the 1981 Act. I direct that revocation of that licence take effect at 23:59 on 6 September 2023 to allow for an orderly winding down of the business.

6. Disqualification

Having revoked Mr Bain’s licences, I moved to consider whether I should make an order for disqualification. I had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 3 in reaching my decision. I also reminded myself of the authority in T/2010/29 David Finch Haulage. In that case, the Transport Tribunal said:

“The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary…”

The Senior Traffic Commissioner’s guidance states that serious cases may merit disqualification of between five and ten years. For a first public inquiry, the starting point suggested is between one and three years. Mr Bain has attended public inquiry before, as recently as 2019. Similar concerns were at issue and Mr Bain has failed to heed the warning issued by my deputy.

Taking account of all the circumstances, I consider that a period of disqualification is necessary to meet the objectives of the operator licensing regime. Acknowledging that this is a serious case involving dishonesty which strikes at the heart of the licensing regime, but giving credit for the positives that I was able to find, I have decided to disqualify Mr Bain from holding an operator licence for a period of five years.

Mr Bain has lost his repute as a transport manager. I must therefore disqualify him for acting as such. I see no reason to depart from the period of disqualification ordered in relation to his capacity as an operator.

It was clear from Mr Bain’s evidence that his knowledge and skills as regards the running of a transport operation were severely lacking and out of date. Therefore, as a rehabilitation measure, I set the requirement to resit the full transport manager course and exam. If Mr Bain does complete such a course and wishes to be appointed once again, I direct that he appear before a Traffic Commissioner to determine whether his repute should be restored.

Claire M Gilmore

Traffic Commissioner for Scotland

6 August 2023