Decision

Decision for Raddery Sawmill Ltd (OM1099184) conjoined with driver conduct hearing for Mr Alasdair Anderson

Published 9 May 2023

0.1 IN THE SCOTTISH TRAFFIC AREA

1. WRITTEN DECISION OF THE TRAFFIC COMMISSIONER

1.1 OM1099184 RADDERY SAWMILL LTD CONJOINED WITH DRIVER CONDUCT HEARING FOR MR ALASDAIR ANDERSON

2. Background

Raddery Sawmill Limited (OM1099184) (hereinafter referred to as ‘the operator’) has held a restricted operator’s licence for one vehicle and two trailers since 11/11/2010. Mr Alasdair Anderson is the operator’s sole director.

A report dated 18 November 2022 by Vehicle Examiner (VE) Brown was submitted to my office. The report detailed the circumstances of an accident which occurred on 4 October 2022 involving a JCB fastrac tractor and trailer owned by the operator as well as many other negative findings in terms of the operator’s systems.

A report by Traffic Examiner (TE) Haddow, dated 6 January 2023, was also submitted. It alleged, amongst other things, that the operator had no systems for ensuring that the rules on drivers’ hours and tachographs were observed, that drivers had driven the operator’s vehicles without the correct entitlement or valid CPC.

3. The Public Inquiry

Mr Anderson attended the inquiry. VE Brown and TE Haddow were also in attendance (TE Haddow, remotely by MS Teams). Documentary evidence for the inquiry had been lodged by Mrs Anderson, Mr Anderson’s wife, in response to the call up letter. I had regard to all of that alongside the other evidence before me.

4. Preliminary matters

1. [REDACTED]

5. Evidence

VE Brown explained that, on 4 October 2022, a fastrac tractor with an HGV trailer attached had been involved in an accident. The trailer, fully loaded with 18 tons of timber, had become detached from the tractor and had travelled across the carriageway colliding with another vehicle traveling in the opposite direction. The oncoming vehicle was impaled on the trailer’s drawbar it having travelled through the engine compartment into the passenger cabin. The driver of the vehicle was injured and was taken to hospital.

The fastrac is an agricultural vehicle. However, it was being used in the course of haulage that day and thus came within scope of operator licensing. It was also not exempt from testing or taxation. It was not specified on the operator’s licence. The fastrac had no MOT, no road tax and was not fitted with a tachograph as would have been required to legally carry out haulage on the public road.

The trailer which had become detached had no MOT and was found to have no functioning brakes. VE Brown issued immediate prohibitions to both the fastrac and trailer.

VE Brown carried out a maintenance investigation following the accident. The operator was found to hold no inspection records for the vehicle and trailers specified on its operator licence. There was no evidence of a driver defect reporting system, tyre management, wheel torquing procedures or arrangements for ensuring load security.

VE Brown told me that there were clearly some repairs being carried out to the operator’s units, as evidenced by Scania repair invoices he had seen and the fact that the operator’s pass rate was acceptable. VE Brown also advised that Mrs Anderson, the director’s wife, had engaged with him following the investigation. She was able to advise that she knew where to find information to improve the operator’s level of compliance from the very poor state which he had found it in.

VE Brown had looked at the maintenance documentation which had been lodged for the inquiry. He noted, notwithstanding his investigation, that the maintenance documentation remained incomplete. There were some PMI documents which had been completed for the trailers and vehicles since his investigation but not as many as there should have been, given the ten weekly inspection schedule. He also noted that brake testing was not being carried out laden, that walkround check sheets didn’t show many defects where he would have expected to see some.

TE Haddow’s evidence was in short compass. She had completed an investigation following the accident on 4 October 2022. She found that the operator had no systems for managing drivers’ hours or ensuring that the laws in relation to driving and the operation of vehicles were observed. The driver of the combination involved in the accident did not have the correct entitlement to drive it. Mr Anderson himself had allowed his driver CPC to lapse in 2020 and had been driving since without one.

TE Haddow advised that there had been some systems put in place since her visit. Mrs Anderson had put in place arrangements for downloading drivers’ hours information and driving licences were now being checked. Her investigations disclosed that the use of the fastrac and trailer appeared to have been a one off.

TE Haddow had had an opportunity to analyse the raw data which had been provided by the operator. Although it appeared to show many infringements on the part of Mr Anderson in particular, she concluded that they mostly arose as a result of the incorrect use of mode switch or leaving cards in. She concluded that Mr Anderson simply did not have sufficient knowledge of the drivers’ hours rules and requirement to record his time accurately.

Mr Anderson told me that when he got his operator’s licence in 2010 he did put systems in place, but those had fallen away over the years. Nobody bothered looking at the tachograph information and other documentation so they had stopped keeping that. They had applied for contracts around that time but had lost out to others using tractors and trailers. He was trying to do it properly.

Mr Anderson accepted he should not have used the fastrac and trailer on the road but told me they were busy making pallets for Christmas trees and he did not have a class 1 driver available. He had asked one of his employees, Josh, to do the job. Josh had told him he had the correct driving entitlements, but he accepted he should have checked. He was sorry that the driver had been injured, but it was a one off using the fastrac and he was in a tight spot.

Mr Anderson said that he had told Josh how to load the trailer properly but he had not done it that way. He’d had some problems with Josh, but he was still working for him. He told me his vehicles had been being maintained and the invoices lodged for the inquiry showed that. He accepted, however, there was no evidence before me to show that had been done in compliance with the agreed inspection frequency, even after the maintenance investigation.

He told me he hadn’t renewed his driver CPC because of Covid. He knew he shouldn’t have been driving without it. The vehicle maintenance had also been difficult because of Covid too. The vehicle wasn’t used much until Covid was over.

When the question of regulatory action was put to him, Mr Anderson simply responded that he didn’t care about his operator licence – he would hand me it back today, sell the lorry and be done. He hated driving and didn’t want his vocational entitlement anymore either. It had cost him thousands to have his vehicle recovered from storage and he resented that.

6. Consideration of the evidence and balancing

Mr Anderson is the sole director of the operator and is in control of it. His actions, therefore, can be equated with that of the operator itself.

Mr Anderson gave his evidence at inquiry in a grudging manner. He told me that he knew that what he had done in sending out the fastrac and trailer was wrong. However, he did not appear to see any great problem with what he had done. I was not able to determine from Mr Anderson’s evidence at inquiry whether he knew it to be wrong, or simply did not care whether it wrong.

The using of an unroadworthy fastrac and trailer combination on that day which; had no MOT, was driven by an unqualified driver, had no effective braking system; and which had not been regularly maintained was an act of the utmost seriousness. It showed a flagrant and willful disregard for road safety. The pictures before of the aftermath of the accident make clear that it is a miracle that that the driver of the other vehicle was not killed.

Mr Anderson attempted to justify his actions by reminding me that using that combination on 4 October 2022 was a ‘one-off’. He was under pressure with work. That evidence clearly demonstrated his willingness to place profit and benefit to his business above that of fair competition and road safety.

The same can be said of Mr Anderson’s wholesale failure to comply with the rest of the undertakings on his licence. His evidence was that there had been systems for maintenance and managing drivers’ hours but they had fallen by the wayside many years ago. The vehicles were repaired on an ad hoc basis but it was clear from the evidence that there was no proper preventative maintenance regime or any attempt to ensure the operator was compliant with the rules relating to driving etc.

Mr Anderson cited Covid as being at the root of his problems. However, other compliant operators found ways to manage throughout the pandemic. It is clear that Mr Anderson did not make the slightest attempt to. He has therefore, for a significant period, imperiled road safety and gained a competitive advantage over other operators as a result of his actions.

There were some positives. Since the investigation, Mrs Anderson had made efforts to put systems in place. The systems for managing driver’s hours are sufficient but there is no evidence that anyone with any knowledge knows how to interpret them. Without analysis that information is meaningless. There appears, now, to be a preventative maintenance regime in place, albeit that is not being properly adhered to. I also accepted that the vehicles had not been used as frequently during the Covid pandemic.

TE Haddow advised that Mrs Anderson had been co-operative and helpful since the investigation. Mr Anderson’s infringements appeared to be as a result of ignorance rather than deliberate attempts to exceed driving time. The MOT pass rate was acceptable. Those positives however, could be afforded limited weight when set against the severity of the other issues before me.

Mrs Anderson did not attend inquiry. I could not, therefore, test her resolve or commitment to the improvement of standards on this licence. Standing that, and having regard to the blasé attitude toward safety and the laws of the road demonstrated by Mr Anderson at inquiry, I was not able to find that Mrs Anderson would be a protective factor if this licence were to continue.

I find that this operator poses a significant risk to road safety. Fair competition has also been impacted as a result of the operator’s failures over what has clearly been a significant period of time. Findings in terms of S.26(1)(c)(iii), (e), (f) and (h) of the Act are made out.

This case involves a restricted licence where the continuing requirement on behalf of the operator is ‘not to be unfit’. However, having regard to the decision of the Transport Tribunal in 2013/07 Redsky Wholesalers Limited I considered the question posed in 2009/225 Priority Freight to be relevant in assessing fitness. I asked myself therefore, how likely is it that this operator will, in future, operate in compliance with the operator licensing regime?

The evidence is that this operator has failed to comply with the undertakings on its licence for many years. The sole director is motivated by his own gain and glibly placed that above road safety, resulting in a most serious accident. His attitude is amongst the poorest I have seen of the operators I have encountered at inquiry. Despite the recent efforts of Mrs Anderson to make improvements I do not consider that, should the licence survive, this operator would comply.

Mr Anderson has shown a flagrant disregard for the operator licensing regime. That leads me to conclude that I am unable to trust him, or this operator, in the future. In 2006/277 Michael James Fenlon t/a County Skips the Tribunal said:

‘It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.’

Given the importance of trust to the licensing regime, even balancing the positives I have identified, this operator’s licence cannot survive.

When asked about regulatory action, Mr Anderson told he no longer wanted his operator licence. It was clear he was not interested in exploring matters further. I was unable to therefore to determine what impact the loss of his licence would have on his business. I assume from his evidence that it will not be catastrophic.

However, if I am wrong in that, then the question posed in T/2002/217 Bryan Haulage (No.2) becomes relevant: “Is the conduct of this operator such that it ought to be put out of the business?” Standing the findings I have made in relation to this operator, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative.

I had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 4. This case was one where the operator had obtained a commercial advantage over other operators by failing to implement proper systems for the management of drivers, drivers’ hours and vehicle maintenance. Those failures had put road safety and fair competition materially at risk.

The starting point for regulatory action was, therefore, severe. I 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. I have decided, therefore, that revocation of this operator’s license is a proportionate regulatory response.

In considering whether disqualification should follow revocation, I again had regard to Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making. I 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.

This is a particularly serious case, involving breaches of trust which go to the heart of the licensing regime. Road safety has been seriously compromised and the operator has gained a commercial advantage over other operators by virtue of its actions. The operator, under the stewardship of Mr Anderson, has failed in a wholesale manner to comply with the licence undertakings. Such behaviour demonstrates a flagrant disregard for the operator licensing regime and leads me to conclude that a significant period of disqualification is appropriate.

Given the severity of the issues before me, I have decided that an appropriate length of disqualification in this case is 10 years. I disqualify both the operator company, and Mr Anderson, from holding an operator licence for that period. For the same reasons, I consider that S.28(4) should apply in this case and I direct accordingly.

7. Driver Conduct Decision

7.1 Relevant Statutory Provisions

Section 115 (1) of the Road Traffic Act 1988 provides that a large goods vehicle or passenger-carrying vehicle driver’s licence - (a) must be revoked if there comes into existence, in relation to its holder, such circumstances relating to his conduct as may be prescribed; (b) must be revoked or suspended if his conduct is such to make him unfit to hold such a licence; and where the licence is suspended under paragraph (b) above it shall during the time of the suspension be of no effect.

Section 116 (1) provides that any question arising under section 115 (1) (b) of this Act as to whether a person is or is not, by reason of his conduct, fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, may be referred by the Secretary of State to the Traffic Commissioner for the area in which the holder of the licence resides.

Section 116 (2) provides that where on any reference under sub-section (1) above, the Traffic Commissioner determines that the holder of the licence is not fit to hold a large goods vehicle or passenger carrying vehicle driver’s licence, as the case may be, he shall also determine whether the conduct of the holder of the licence is such as to require revocation of his licence or only its suspension; and if the former, whether the holder of the licence should be disqualified under section 117 (2) (a) of this Act (and, if so, for what period) or under Section 117 (2) (b) of this Act.

Section 116 (3) provides that a Traffic Commissioner to whom a reference has been made under sub-section (1) above may require the holder of the licence to furnish the Commissioner with such information as he may require and may by notice to the holder, require him to attend before the Commissioner at the time and place specified by the Commissioner to furnish the information and to answer such questions (if any) relating to the subject matter of the reference as the Commissioner may put to him.

Section 121 defines conduct as meaning (a) in relation to the applicant for or the holder of a large goods vehicle driver’s licence, his conduct as a driver of a motor vehicle, and (b) in relation to an applicant for or the holder of a passenger – carrying vehicle driver’s licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a passenger – carrying vehicle driver’s licence.

7.2 Evidence

The evidence, which is not disputed, is that Mr Anderson’s driver CPC expired on 8 December 2020. He had driven his HGV on at least 31 occasions since that date without the proper CPC qualifications. I noted Mr Anderson had held his vocational entitlement for many years and I was not aware of any other driving convictions on his part.

I had regard to the version of the Senior Traffic Commissioner’s Statutory Document No.6. The starting point I am given in relation to regulatory action for failing to hold the correct DCPC qualification is a four week suspension of vocational entitlement per occasion.

Mr Anderson drove on at least 31 occasions without driver CPC entitlement. Even taking into account the difficulties he may have experienced with undertaking training as a result of Covid (he did not advise me of any specific details) and his otherwise unblemished driving history, it was clear that revocation of his vocational entitlement, and disqualification for a lengthy period was in contemplation.

Mr Anderson told me he no longer wanted his driving entitlement. There is no evidence of the impact of its loss, therefore, for me to weigh into the balance. Much like his operator’s licence, Mr Anderson does not care.

Mr Anderson’s behaviour in driving without CPC, much like his behaviour as an operator, demonstrates a flagrant disregard for the law of the road. Standing that I have decided that revocation of his entitlement is a proportionate regulatory response.

It is also proportionate given the gravity of the offending that a period of disqualification be imposed. Balancing the positive against the negatives in this case, I have decided that 3 years is an appropriate period. I also direct, should Mr Anderson wish to reapply for his vocational entitlement again in the future, the application should be passed to a traffic commissioner for consideration.

Claire M Gilmore

Traffic Commissioner for Scotland

19 April 2023