Decision

Decision for Atlantic Travel (GB) Limited (PC1078893) and Transport Managers: Yasser Ahmed Dean & David Roy Horrocks

Published 30 November 2022

0.1 In the North West Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Atlantic Travel (GB) Limited (PC1078893) and Transport Managers: Yasser Ahmed Dean & David Roy Horrocks

2. Background

Atlantic Travel (GB) Limited (“the operator”) holds a standard international public service vehicle operator’s licence PC1078893 authorising the use of thirty-seven vehicles issued in 2009.

The operator’s sole director is Yasser Ahmed Dean who is also Transport Manager alongside David Roy Horrocks.

The operator and its Transport Managers were called to public inquiry after it notified my office that one of its vehicles had collided with a railway bridge on 27 May 2022.

The information that the operator provided raised concerns about the adequacy of the measures that the operator and its Transport Managers had taken to reduce the risk of such a collision with infrastructure hence the call to public inquiry.

The operator had previously been called to public inquiry on three occasions, at the time of application in 2009 and subsequently in 2017 and 2021. The previous inquires related to maintenance standards and resulted in the issue of warnings and recording of undertakings.

Much of the brief contained evidence of roller brake tests that the operator had submitted to comply with an undertaking in relation to the frequency of roller brake tests. A question had arisen whether that evidence covered all the period required by the undertaking. The operator explained that there was no evidence of earlier testing of some vehicles as they had only recently been acquired. I was also content that there were no wider compliance issues that required consideration at the public inquiry other than the bridge strike.

3. The Call to Public Inquiry

The call to public inquiry was issued to the operator on 22 August 2022. This gave notice that the issues of concern to be considered related to Sections 17(3)(aa), 17(3)(b), 17(3)(e), 17(1)(a) and 14ZA(2) of the Public Passenger Vehicles Act 1981 (“The Act”).

Transport Managers Dean and Horrocks were called up by letter of the same date that cited Schedule 3 of the Act

The brief drew attention to the Senior Traffic Commissioner’s letter to all operators about avoiding bridge strikes dated 25 September 2020 and indicated that the inquiry would consider what steps the operator and transport managers took to:

• assess the risks and ensure that routes were planned in advance, so far as is reasonably practicable
• ensure that drivers, transport managers and planners were properly trained to enable them to assess the risks
• ensure that drivers were be provided with adequate information including about the vehicles which they are driving.

4. The Public Inquiry

The hearing was held at Golborne on 1 November 2022. The operator was represented today by its director and Transport Manager Mr Dean and Transport Manager Horrocks. Transport Consultant Grahame Robinson was also present, and the parties were legally represented by Mark Davies of Backhouse Jones solicitors.

A conjoined driver conduct hearing was held for driver Hassan Akhtar. The full decision in relation to him has been recorded separately but I considered that his vocational entitlement should be revoked, and he was disqualified from holding a PSV driving licence for 6 months.

5. Findings of fact

The basic facts of the bridge strike were largely not disputed.

The operator had been hired to transport children from a primary school in Prestwich, Manchester for a visit to the Quarry Bank Mill heritage site on 27 May 2022.

Mr Akhtar was tasked with driving a double decker bus for the journey. He was given a job sheet on the day prior to the journey which set out the pick-up and destination points together with start and finish times. The document did not give any route details.

Mr Akhtar planned the route himself using Google Maps on a computer in the operator’s office. A supervisor would have been present in the office to help with router planning but Mr Akhtar’s evidence suggested that on this occasion he had not sought assistance. Mr Dean and Mr Horrocks believed that he had been offered that assistance but the evidence from all the witnesses was unclear on this point.

Mr Akhtar completed the outward journey without incident. He conveyed around 55 children and 5 members of school staff (many seated on the top deck) to the destination as required. Mr Akhtar said he followed the route from memory but also had access to Google Maps on his mobile phone that was held in a cradle.

During the return journey Mr Akhtar encountered congestion and became concerned that he would be delayed returning to the school. This in turn made him worry he would be late for his scheduled “school run” duties later that afternoon. Mr Akhtar said he had not contacted his office to discuss this concern. Mr Dean’s understanding differed. He said that Mr Akhtar had run the office and had been reassured that another driver could cover the school run if needed.

Whether or not Mr Akhtar made the call, I am satisfied the operator did not place him under undue pressure to compete his journey and that was not a cause of the collision.

However, as a result of the congestion, Mr Akhtar decided to follow a different route back to the school; one that was suggested to him by Google maps. Mr Akhtar conceded that Google maps was not set up to consider the size of his vehicle when suggesting a route.

Mr Akhtar found himself on Fairfax Road, Prestwich driving towards the railway bridge. He gave evidence that he had not driven on that road before. Photographs show that there was a warning sign at the side of the road about the presence of the bridge and its height. The bridge itself was clearly marked with a sign confirming its height as 13’9. The double decker vehicle had a height of 14’ 6 as indicated on a marker visible to the driver in the cab and was therefore a full 9 inches higher than the signed bridge height.

Mr Akhtar said the Google maps route did not flag up any issue with the bridge and he claimed not to have seen the warning signs. I do not consider there was any reasonable explanation why he should not he should not have seen any of the signs.

He then proceeded to drive slowly under the bridge. It appears his speed was dictated by the heavy traffic rather than any conscious decision to negotiate the bridge carefully. As the bus passed under the bridge, the roof was in contact with the underside of the bridge structure. Photographs of the bus show superficial scrape marks to the roof consistent with it having come into contact with bolts protruding from the underside of the bridge.

Mr Akhtar said that he stopped and asked the children and staff to disembark and wait on the pavement whilst he reversed the bus out. He reported the matter to his office and then continued the journey to the school without further incident.

Mr Horrocks attended the bridge site and could not see any damage to the bridge. Although he saw the sign with details of how to notify any collision to the bridge operator, he decided not to do so as he could not see any damage to the bridge. This was troubling as Mr Dean himself volunteered during the hearing that they were not experts on bridge structures.

The operator subsequently spoke to school management about the incident and following an internal investigation Mr Akhtar was issued with a written warning by his employer that read, “you neglected to research and plan your journey putting yourself, your passengers, your vehicle and third-party property at serious risk of injury and property damage”. Mr Akhtar and other drivers had been trained in bridge strike avoidance in the wake of the incident. Mr Akhtar remained employed by the operator at the time of the other consequences.

I found the collision was the result of a gross error of judgment by Mr Akhtar and that robust driver conduct action was required to ensure his future fitness to drive. However, that finding does not mean that the question of accountability for the operator and its Transport Managers should not also be considered.

The bridge strike was notified to my office by email on 30 May 2022 from TM Horrocks. Mr Horrocks described the collision in that email as a “minor incident”.

The operator’s approach to avoiding such collisions prior to the incident on 27 May 2022 was set out in a written submission in advance of the hearing (with supporting documents) and in the evidence of Mr Dean and Mr Horrocks during the inquiry.

Mr Dean and Mr Horrocks assured me that they were aware of the Senior Traffic Commissioner’s letter to operators, and I am satisfied that they had taken some steps to address the risk of bridge strikes before the incident in May 2022.

Most of the operator’s work involves daily school transport and those routes are planned by the operator. Drivers are also taken out to drive the route to ensure they are familiar with the journey and any hazards identified. To some extent, the routes are determined by the location of the numerous stops specified in the contracts, but Mr Dean told me that they would change the route if there was a low bridge or other hazard identified. A similar approach is taken to the operator’s rail replacement work.

The private hire work is a smaller proportion of the operator’s work (less than 25% and typically involving around 5 or 6 vehicles from its fleet) and is mostly undertaken by coaches that are fitted with commercial sat-nav devices. The operator’s double decker buses are not so equipped. I was told it was unusual for a double decker bus to be used for a one-off private hire booking as happened on 27 May 2022.

The practice for the operator’s private hire work prior to this incident was for drivers to plan their own route having been given details of the starting point and destination. To assist them in this task they had access to Google maps on a computer in the office. The drivers were also offered support from Mr Horrocks or one of the other supervisors if required. The impression that I took from the evidence was that such assistance was rarely sought by the drivers.

In relation to the specific incident on 27 May 2022, I do not consider that the operator or its managers played any tangible part in planning the outwards journey and Mr Akhtar was effectively left to his own devices. I am also satisfied that when Mr Akhtar encountered the congestion, he clearly felt at liberty to choose his own alternative route without having to consult with his office.

My attention was drawn to the “Driver Operational Manual” issued by the operator to all drivers (with evidence that Mr Akhtar had received his copy in February 2021). This contains an instruction that all sat-nav systems should be in commercial vehicle format and it also said that “normal” car sat-nav systems were prohibited. Additionally mobile phones were only to be used in hands free mode and for emergency use only. I accept that instruction was given, and that Mr Akhtar was clearly acting in breach of that instruction when he used Google maps on his phone. However, Mr Horrocks conceded that although the instruction was issued to all drivers, the operator had not undertaken any ongoing monitoring to ensure drivers were complying with the instruction.

The operator to its credit did undertake an annual risk assessment that included consideration of bridge strikes. Mr Horrocks confirmed he had implemented this practice on his appointment and in the light of the Senior Traffic Commissioner’s guidance. Since the incident they have increased the frequency of the risk assessment to 6 monthly. Whilst I give the operator credit for that approach, I was concerned that Mr Dean also appeared to place great store in the fact that the operator had not previously been involved in a bridge strike. Clearly, whilst the actual incidence of an event is a factor to be considered, care should be taken that it is not the determining feature in assessing the likelihood of such an event occurring.

I was provided with copies of the risk assessment undertaken by Mr Dean and Mr Horrocks on 15 March 2022 and 15 September 2022. I noted that the March 2022 document rated the risk of a bridge strike as “High”, The document identified that further action was needed in the form of “more training and better route planning system”.

During the hearing I gave Mr Dean and Mr Horrocks repeated opportunities to tell me what action they took after that assessment in March 2022 to implement the required improvements in training and route planning. Mr Dean and Mr Horrocks could only refer back to the earlier evidence of their practice of offering drivers’ management support with route planning using the office computer and to the guidance issued in the drivers’ handbook. Reference was also made to information posted on a noticeboard about the location of low bridges and other hazards and to drivers being encouraged to ask the Transport Managers of supervisors for assistance. However, Mr Dean and Mr Horrocks were unable to give me any specific evidence of tangible changes made between the risk assessment on 15 March 2022 and this incident on 27 May 2022.

Although changes have been made since May 2022, I find they were prompted by the bridge strike incident, and I conclude that the operator did not act promptly and effectively to implement the changes it had identified as being necessary in March 2022.

The changes that have happened since are mostly positive. The operator has ensured all drivers undertook a 2-hour long course specifically on bridge strike avoidance in June 2022 and has reissued its guidance on the use of sat-nav devices. I saw evidence of an audit undertaken by Mr Horrocks in June 20022 to identify what sat-nav devices each driver was using and to check they were compliant with company policy. While that is creditable, I remain concerned that the operator had not implemented a policy of gate checks or similar to ensure drivers were actually complying with those instructions.

The operator has recruited an additional supervisor to assist with route planning and has invested in software called “Lorry Route” to provide vehicle specific routes. The software is available on the office computer and a copy of the route generated is printed and attached to the driver’s job sheet. The drivers have also been given access to an app on their mobile phones that they can access in the event of encountering a diversion from their given route. I made the point that did seem at odds with the current driver’s handbook that prohibited use of mobile phones.

This is not a case where the operator and its Transport Managers had completely failed to consider the risk of bridge strikes. There was an annual risk assessment process in place and route planning was carried out for the largest part of the operator’s work on regular school runs and rail replacement services. The risk in relation to private hire work was mitigated to an extent by the fitting of commercial sat-nav devices to the operator’s coaches. Efforts had also been made to dissuade drivers from using their own unsuitable devices.

I find that there was a gap in that approach, and it was exposed by this incident. Insufficient steps had been taken to reduce the risk of a bridge strike involving a double decker bus being used on private hire work. I find the operator (and in particular Mr Dean and Mr Horrocks as Transport Managers) failed to take sufficient steps to ensure that the drivers planned suitable routes for such journeys.

If Mr Akhtar had been given better instructions as regards route planning and he had been required to consult with the office if taking a diversion, then he would not have found himself on Fairfax Road on the afternoon of 27 May 2022 approaching a railway bridge that was clearly too low for his vehicle.

That risk was not unforeseen. The risk assessment on 15 March 2022 identified the need for more training and better route planning but Mr Dean and Mr Horrocks failed to act on those improvements with appropriate speed.

That reflects an unfortunate complacency in their approach which is evidenced by Mr Dean’s reliance on the absence of previous incidents, the failure to report the incident to the bridge owners and Mr Horrocks’ initial categorisation of the collision as a “minor incident”.

I conclude that while primary accountability for the bridge strike must rest with driver Akhtar, there were failings on the part of the operator and its Transport Managers that contributed as well.

I find those failings mean the operator has not fulfilled its undertaking to ensure that the laws relating to the driving and operation of vehicles are observed and the grounds for regulatory action in Section 17(1)(aa) of the Act are met.

For completeness, I note that the evidence concluded with a summary from Mr Robinson of the audit report he had prepared. Mr Robinson confirmed that he considered the operator’s compliance to be good and continually improving. He commented that matters had improved considerably since Mr Horrocks’ appointment. This confirms my view that there are no wider compliance issues that merit regulatory action.

6. Relevant considerations

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10. I have also considered the Upper Tribunal’s remarks in Bridgestep Limited T/2019/54, “it is incumbent upon the transport manager and the company to ensure that the company’s vehicles are operated without risk to road safety and in particular, that the risk of bridge strikes, which could have catastrophic consequences, should be assessed and routes planned in advance to eliminate that risk.

I determine that the operator and Mr Dean and Mr Horrocks as Transport Managers did not fully satisfy that duty set out by the Upper Tribunal for the reasons I have given above.

The omissions in their approach to the risk of bridge strikes posed by certain parts of their work means I find there was ineffective management control and insufficient procedures in place to prevent operator licence compliance failings. This finding must be balanced by noting that was not a complete absence of such control and procedures and the criticism is limited to the narrow use of double deck vehicles for private hire work. That did however create a risk to road safety and to passengers in particular that I must regard as a negative factor. I also find that the failure to promptly act on the improvements identified in the March 2022 risk assessment is a negative factor.

The operator has appeared at public inquiries previously, but I treat as a positive the evident improvements it has made to its compliance in response to those past issues.

I also recognise the positive aspect of the changes the operator has now implemented in relation to its approach to preventing bridge strikes albeit that some further refinement is needed such as clarifying the approach to mobile phone use and monitoring drivers’ compliance with their instructions.

Having reflected on the evidence heard at public inquiry and considered the balancing exercise, I conclude that regulatory action falling into the “Moderate to low” category is appropriate here. Clearly if there had been no evidence of the risk of bridge strikes being assessed or a lack of effective mitigating action in relation to entirety of the operator’s work, then action far higher up the scale would have been considered.

I have gone on to consider the Priority Freight question and in general I find that I can have confidence that the operator can be trusted to be compliant in future. I have also considered carefully submissions made by Mr Davies on behalf of the operator that a warning will suffice.

I consider that a suspension of the entire operation would be disproportionate as I am satisfied that the risk was restricted to that small part of the business that involved private hire work and occasional journeys.

However, I consider that some action beyond a warning is necessary to encourage the operator to avoid the complacency that I find did play a part in relation to this incident. I refer in particular to the failure to promptly act on the findings of its own risk assessment in March 2022. Had those changes to training and route planning been made then, this incident may well have been avoided.

7. Decision

My determination is that the proportionate means of addressing my concerns about this operator is by attaching a condition limiting the number of PSVs on the licence for a short but meaningful period of 14 days. I further determine the appropriate reduction should be of the five vehicles that corresponds with the number used for private hire work and should not affect the operator’s ability to service its school transport and rail replacement commitments.

I have given 28 days’ notice of this limitation coming into force but will consider further representations from the operator about the applicable dates if received within 14 days.

I consider a warning is sufficient action against Mr Dean and Mr Horrocks. It would be disproportionate to find that they had lost their repute given the wider compliance of the licence and the action that they had taken to assess and address the risk of bridge strikes in relation to most of the operation. That said they had failed to act promptly on their own identification of the areas for improvement. However, I am satisfied that the fact of the incident on 27 May 2022 coupled with the attendance at public inquiry and the recording of a warning will serve as a sufficient reminder to them of the need to ensure they fully and effectively discharge their responsibilities in future.

Gerallt Evans

Traffic Commissioner for the North West of England

14 November 2022