Decision

Decision for Concrete Man Limited t/a Concrete Man and Brendan Adrian Thompson

Published 21 June 2024

0.1 In the West of England Traffic Area

1. Concrete Man Limited t/a Concrete Man – Operator, Public Inquiry OH2020908

2. and (conjoined hearing) Mr Brendan Adrian Thompson - Driver, Driver Conduct Hearing

The conjoined hearing was closed by me on 23 April 2024 with the following directions to the Operator:

• Within no more than 7 days of today’s date the Operator shall submit a fully completed application to authorise the use of 1 trailer to regularise its operation of an artic and trailer combination under this licence;

• Within no more than 28 days of today’s date the Operator shall provide the Traffic Commissioner with original documentary evidence of the funds available under the credit card facility held by the company, to include a letter from the credit card provider confirming that the facility provided in the trading name of the company is legally provided to and held by the company and complete credit card statements for the months of January, February, March 2024.

The foregoing directions have been fulfilled by the Operator and I now proceed to make the following determinations.

3. The Operator

Having found that the following grounds are made out from the evidence accepted and adopted by me, that entitle me to exercise my discretion to make an order under section 26 (1) of the Goods Vehicle (Licensing of Operators) Act 1995 ( as amended) (‘the Act’) and finding that it is appropriate and proportionate to do so, I determine that this licence is CURTAILED such that the maximum number of vehicles that may at any one time be operated under it is reduced from 4 VEHICLES AND 1 TRAILER to 2 VEHICLES AND 1 TRAILER with immediate effect :-

Section 26 (1) (c)(i) of the Act: - relevant conviction of the Operator (Swindon Magistrates Court, 9 February 2024 -use of a vehicle on 14 June 2023 without a valid annual test certificate);

Section 26 (1) (c)(ii) of the Act: - relevant conviction of an employee of the Operator (Swindon Magistrates Court, 9 February 2024 – offences on 14 June 2023: failing to stop when instructed to do so by a DVSA stopping officer; obstruction of a DVSA examiner performing their duties);

Section 26 (1) (f) of the Act – breach of the undertakings to have proper arrangements in place to ensure:

• vehicles used under this licence are kept in a fit and serviceable condition;

• the laws relating to the driving and operating of vehicles used under this licence are observed.

Section 26 (1) (h) of the Act: - material changes in the circumstances of the Operator that were relevant to the issue of the licence:

• The offending conduct of the Operator acting by its director Mr. Brendan Thompson and of Mr. Brendan Thompson as an employee of the Operator on 14 June 2023 committing offences to which guilty pleas were made, resulting in the foregoing convictions on 9 February 2024;

• The Operator’s failure to notify the foregoing convictions of the Operator and its employee to the Traffic Commissioner as required by its operator’s licence;

• The changes in the Operator’s ability to demonstrate appropriate finance for the purposes of this restricted operator’s licence under section 13D of the Act assessed in accordance with the guidance set out in STC Statutory Document no 2 on Finance for the number of vehicles authorised under its licence;

• The Operator’s failure to notify the foregoing material change in its available finance for the purposes of its licence as required by its operator’s licence;

• The use of a trailer when operating an authorised vehicle under this licence without the appropriate licence authority to operate any trailers under this licence;

• Changes in the fitness of the Operator to hold this operator’s licence as considered below.

I note that a Warning letter issued by the Traffic Commissioner dated 24 November 2023 for shortcomings found by DVSA Vehicle Examiner Jason Davies on his maintenance investigation visit of 30 August 2023 for which acceptable assurances were supplied dated 13 September 2023. I also note the above. I find that by reason of the combination of the foregoing the fitness of the Operator to hold an Operators licence has been very seriously tarnished and almost lost as at the date of this decision. I have drawn back from finding the Operator unfit to hold this licence (i) giving the Operator the significant benefit of doubt concerning the damage Mr. Thompson claims was caused to two of the vehicles tyres on 14 June 2023 when turning round to return to the DVSA check site which were then replaced during that return journey after contacting his wife to identify a local tyre service, and (ii) relying materially on his assurances that, on reflection, he has learned from the serious consequences of his acts and omissions and would not conduct himself in the same manner as he did on 14 June 2023 if he was placed in the same situation again.

4. Mr. Brendan Adrian Thompson, Driver Conduct

The UK driving licence entitlement of Mr. Thompson to drive LGV is suspended for a period of 14 consecutive days commencing at 00:01 hours on 1 July 2024 and ending at 23.59 hours on 14 July 2024.

Mr. Thompson was convicted at Swindon Magistrates Court on 9 February 2024 of 2 offences committed by him as a driver on 14 June 2023: failing to stop when instructed to do so by a DVSA officer exercising their stopping powers; obstructing a DVSA examiner exercising their powers. He received a fine of £250 for each of these offences and was ordered to pay a victim surcharge of £524 and costs of £691.

Section 115 (1) of the Road Traffic Act 1988 provides that “a large goods vehicle or passenger-carrying vehicle driver’s licence

• must be revoked if here comes into existence, in relation to its holder, such circumstances relating to his conduct as may be prescribed; 

• 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.

I find that the offences for which he was convicted each involve conduct whilst the driver of a motor vehicle and are therefore relevant conduct for the purposes of the foregoing legislation.

I have considered the guidance contained in STC Statutory Document no 6 on driver conduct.  I find the nearest starting point conduct set out in Annex A for current entitlement holders to be:

‘Report from a public body of a driver adopting abusive or intimidating behaviour to a public official’ with the starting point for action of ‘Call to a hearing’ and a ‘14-day suspension’

I note the foregoing and find the convictions are for conduct which is serious and incompatible with fitness to hold the entitlement to drive LGV.  Having heard from the driver I am satisfied that he has learnt appropriate lessons from the consequences of his acts and omissions as a driver on 14 June 2023. I also take account of his otherwise unremarkable driving history before or since that day. I am drawn on balance to treat this as an isolated case of unacceptable and exceptionally poor judgment and conduct as a driver on 14 June 2023, that more likely than not shall not be repeated by him and have ordered accordingly.

Fiona Harrington DTC West

12 June 2024