Decision

Decision for E M Horsburgh

Published 28 May 2021

0.1 IN THE SCOTTISH TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER FOR SCOTLAND

1.1 In the matter of

2. E&M HORSBURGH LIMITED PM0003023 CONJOINED WITH NINE DRIVER CONDUCT HEARINGS

2.1 Public Inquiry held at Edinburgh on 5 and 6 February and 7 October 2020

3. Background

The operator was called to public inquiry in connection with a number of concerns which had been raised with my office regarding their transport operation. The inquiry first called before me in February 2020 but was unable to be concluded in the two days initially allocated.

The impact of the coronavirus pandemic meant that the inquiry was not reconvened until October 2020. The challenges posed by the ongoing pandemic have also impacted on the issuing of this decision, there being significant delay in obtaining a transcription of the evidence.

Much of the evidence in this case is now aged. I have had regard to that, and to the impact that the pandemic had had more widely on the coach and bus industry, in reaching my decision. I have limited my decision to a summary of the evidence and the simple written reasons set out herein.

4. Evidence

A number of alleged failings were set out in the letter calling the operator to inquiry. A fleet inspection of four of the operator’s vehicles in 2018 had resulted in prohibitions being issued. A traffic examiner report disclosed that drivers employed by the operator had committed driver’s hours offences. There were reports of two bus fires involving the operator’s vehicles, and alleged concerns which had been aired in the press in relation the condition of vehicles used by the operator. There were also reports from Bus Users Scotland in relation to alleged failures in bus punctuality. I was aware that the operator had appeared at public inquiry previously, in 2006, but that no formal action had been taken.

Mr McAteer, solicitor advocate, appeared on behalf of the operator at inquiry. I heard evidence from VE Montgomery, TE Stoner, TE Syme, Directors Eric Horsburgh and Mark Horsburgh, Mr Marshall Nesbit, Ms Pam Brown and the nine drivers who were alleged to have been involved, to varying degrees, in breaches of the driver’s hours rules. Mark Horsburgh also attended in his capacity as transport manager.

Mr McAteer raised a preliminary issue in relation to sufficiency of the cautions given to the drivers at interview. I rejected his preliminary submission on the admissibility of the statements but advised that I would consider the impact of any unfairness I found in the obtaining of them when assessing what weight to attach to them as evidence.

I noted that TE Aiton, the author of the report in relation to the alleged driver’s hours infringements, had left DVSA. TE Stoner attended inquiry in her place to speak to the report. Her evidence was, obviously therefore, limited to her interpretation of that report rather than first hand observation of the alleged infringements but I found her to be a straightforward witness who gave her evidence in a clear manner.

VE Montgomery advised that he had undertaken a maintenance inspection, and that all of the operator’s preventative maintenance systems were functioning well. An inspection of four of the operator’s vehicles had led to prohibitions being issued but none were ‘S’ marked. DVSA did not generally carry out detailed inspections of vehicles which had gone on fire, but they had attended at the operator’s request following one of the bus fires. There was no evidence to suggest any fault on the part of the operator, but he considered that fuller investigation into the causes of the fires could have been instructed.

TE Stoner spoke to the content of TE Aiton’s report. Nine drivers were suspected to have committed driver’s hours offences. I heard a significant amount of evidence in relation to the alleged offences, including from all of the drivers in question. Every one of them, including those drivers who had been dismissed by the operator as a result of their behavior, advised that that they had been coerced or pressurised in some way into breaking the rules by a former employee of the operator who had been charged with allocation of work. The operator had around 120 drivers and the investigation uncovered no other concerns in relation to the wider workforce.

Mark Horsburgh gave his evidence in straightforward manner. He was the transport manager and admitted that he had taken his eye off the ball. He had, however, trusted the long serving manager to whom responsibility for managing the drivers had been delegated. He advised that the manager had become bitter following his failure to obtain a promotion within the company and had let them down badly. Oversight had now significantly improved and he kept a close eye on the regular reporting which was carried out.

Eric Horsburgh’s conduct and behavior at inquiry was erratic and, at times, disrespectful. I had to warn him about the potential impact of such behavior on the operator’s repute. However, he told me he felt frustrated at the situation he found himself in, and I accepted that explanation. When he was eventually able to give his evidence in a calm manner, he drew my attention to the significant improvements which had taken place within the company, both in terms of investment, and oversight of operational management. I was taken through all of the documentation which described the systems which the operator had in place and assured that close monitoring of all aspects of the transport operation was now undertaken. Theirs was a family company with a long and proud history.

There was no dispute in relation to the Bus Users Scotland evidence, and I was directed to the explanation provided by the operator in relation to the observations. An additional report by Bus Users dated February 2020 was lodged, indicating that punctuality on the observed routes was still not meeting target, but evidence was provided of action taken by the operator against drivers who were failing to meet standards required.

5. Consideration of the evidence and balancing

There was no evidence before me to suggest that the operator’s systems for maintaining their vehicles was defective. What was apparent, was that the operator’s fleet contained a significant number of older vehicles which were more prone to breakdown and mechanical failure. I was advised that investment to improve the age profile of the fleet was ongoing. The prohibitions issued were accepted by the operator as warranted, but the evidence was that the defects could have arisen spontaneously.

VE Montgomery’s evidence was that no cause had been identified in relation to the bus fires. He indicated that more detailed investigation could perhaps have been carried out in relation to cause of the fires. However, I also noted the evidence that the operator had sought assistance from the manufacturer of the vehicles and had sought to identify any patterns of common causes. None had been found. I found therefore, in the circumstances of this case, that the operator had made reasonable endeavors to establish the cause of the fires, notwithstanding the fact that they had not asked that a more detailed assessment of the burned out vehicle be undertaken.

I did note, however, that the maintenance inspection reports recorded vehicles having oil or coolant leaks which were subject to monitoring rather than immediate repair. It is common knowledge that fires can start as a result of fluid leaks combined with the intense heat from vehicle’s engine. Going forward, this operator must ensure that any such leaks are quickly identified, and promptly rectified, at all times.

The issue of the standard of vehicles provided for school contracts was the subject ongoing litigation. As such, I do not propose to make further comment herein. VE Montgomery was, however, able to confirm in his evidence, from a DVSA perspective, that one of the issues identified would not be categorised as a defect unless it posed a risk of injury. I was unable to conclude whether the missing window alleged in another report, arose as a result of mechanical failure or vandalism.

Full and detailed information was submitted on behalf of the operator in relation to the internal procedures for investigation of prohibitions. The MOT pass rate was higher than the national average, indicating the vehicles were properly prepared prior to presentation for test. Eric Horsburgh looked after the maintenance side of the business and he gave evidence in relation to his personal involvement and oversight of that. I note that at the time of writing, the operator’s test and encounter history have been entirely positive over the last 12 months. No further incidents or complaints have been brought to my attention.

Mark Horsburgh accepted that there had been a failure in relation to the driver’s hours offences not being identified. He accepted full responsibility for that as the nominated transport manger. The company had, however taken appropriate action when concerns were identified. Importantly, I noted that the offences only involved a small group of the large number of drivers employed by the operator.

I was prepared to accept that a rogue employee had been responsible for encouraging, and effectively hiding from sight, the driver’s hours infringements which had been identified. Crucially, I was provided with firm evidence of the work which had been undertaken to improve systems and the training of drivers.

6. Decision

Mr McAteer submitted that the positives in this case allowed me to conclude that any regulatory action taken should be at the lower end of the scale. I am inclined to agree. Formal findings in terms of section 17(3)(aa) and 17(3)(c) are made out. However, having regard to the passage of time since the incidents in question, the significant number of positives I have identified, and the recent evidence of full compliance, in balancing I am prepared to deal with these matters by way of a strong warning. Mr Mark Horsburgh, as transport manger, is warned in relation to his repute, but it is not lost.

The operator has also, admittedly, failed to ensure all of their bus services meet the required levels of punctuality. The monitoring exercises which were brought to my attention dated to 2018 and early 2019. The operator has provided comprehensive information in relation to the efforts they have made to improve punctuality. Given the ongoing pandemic, it has not been possible to obtain up to date information in relation to their performance.

Having regard to the evidence contained in the reports, a formal finding in terms of section 39 of the Transport Act 2000 is made out. However, the operator has not had a fair chance, given the impact of the pandemic, to evidence improvement. Moreover, I do not consider, in the current economic climate, the imposition of a financial penalty to be appropriate. I have decided therefore, to issue a strong warning in relation to compliance and to ask Bus Users Scotland, to provide me with further monitoring data when services return to normal. I expect to see significant improvement in compliance overall and little or no evidence of early running in future.

I note that the Bus Users report of February 2020 alleges that drivers were on occasion observed to be using mobile phones in vehicles. I anticipate that the operator will already have investigated those allegations and taken any action deemed necessary. However, the operator should provide information to my office in relation to steps taken within 14 days of this decision.

Decisions in relation to vocational entitlement of the drivers heard at the conduct hearings conjoined with this inquiry have been issued separately.

Ms Claire Marie Gilmore

Traffic Commissioner for Scotland

25/3/21