Decision

Decision for Haywood Crushing Demolition Ltd (OD2009040)

Published 9 August 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Haywood Crushing Demolition Ltd (OD2009040)

2. Background

Haywood Crushing Demolition Ltd (the “operator”) was granted a restricted goods vehicle operator’s licence under reference OD2009040 on 22 January 2018. It currently authorises the operation of 4 vehicles and 6 trailers. The directors are Mr I Musto and Mr J Musto.

As a result of an overturned abnormal load on 17 January 2022, and after a Police and HSE investigation and then a subsequent investigation by the DVSA a decision was made to call the operator to a Public Inquiry that was held on 6 June 2023. The call up letter for the Public Inquiry was dated 28 April 2023.

3. The Public Inquiry on 6 June 2023

Present on behalf of the operator was Mr I Musto represented by Mr A Balkitis, specialist road transport regulatory law Solicitor. Mr J Musto, director, did not attend.

Present for the Police were PC A Whitlock and PC T Walsh.

Present for the DVSA was Vehicle Examiner Mr J Coates.

At the start of the Public Inquiry I checked with Mr Balkitis that I had had all of the documents in the case that had been submitted. I asked if there were any opening remarks or issues to be raised and then I proceeded to hear the evidence from all of the witnesses present. Questions were asked of the witnesses and at the end of the hearing I heard from Mr Balkitis in closing submissions before reserving my decision.

4. Standard and burden of proof

The standard of proof is the civil standard; what is more likely than not to have happened based upon the evidence that I considered relevant to this issue to be decided.

5. Findings of fact and reasons

After applying the civil standard of proof to all of the evidence before me, the following findings of fact were made.

The evidence of the Police, HSE and the DVSA was not disputed in a material way.

I also found the evidence from the Police, HSE and DVSA to be credible, cogent and persuasive. It was accepted as such. All of the allegations made by the Police, HSE and DVSA were found to be proven because it was more likely than not, from the evidence before me, that what had been alleged to have happened actually happened. I repeat all of those proven allegations and adopt them all as my findings of fact for the purposes of reaching my decision. In summary they were (but this list is not in any way exhaustive):

• Mr Sean Pratt was the driver of vehicle OB16 DEM on 17 January 2022. He was employed by the operator and had been with the company for about 14 months before the incident. When he was employed Mr Pratt’s competence to drive vehicle’s carrying abnormal loads had not been properly checked by the operator; no road test in such a vehicle was undertaken, no documented training then, or at any time before the incident, was given to Mr Pratt by the operator regarding the loading and movement of abnormal loads and it had been assumed that his previous employment with another demolition company had given Mr Pratt the training, competence and experience necessary to drive any of the operator’s vehicles.

• On 17 January 2022 vehicle OB16 DEM was loaded with a J45 McCloskey jaw crusher machine that weighed circa 45,000KGS.

• Mr Pratt was responsible for securing that load.

• The correct loading procedure is that the load needed to be secured to prevent a minimum of 50% (22,500KGS) of the load shifting sideways and backwards.

• Four chains were used by Mr Pratt to secure the load.

• Those chains each had a maximum load weighting of 3100KGS.

• No other chains were used and no other chains were found to be present on the vehicle after the incident which could have been used. That was the direct evidence of the Police in the Public Inquiry. That evidence was not challenged in cross examination.

• The fours chains used therefore had a maximum load security of 12400KGS (which is nowhere near the minimum of 22,500KGS required).

• The vehicle attempted to negotiate a roundabout. As it undertook the manoeuvre the load shifted, the chains failed and the J45 McCloskey jaw crusher came off the trailer and fell onto the road. The photographs taken (in the public inquiry bundle) speak volumes. It was a miracle that no-one was killed or seriously injured.

• Vehicle OB16 DEM was being driven under normal driving conditions at the time of the incident.

• The incident was entirely avoidable.

• The Police and HSE investigated. The unchallenged (and proven) finding of the HSE that I have adopted stated; “[paragraph 57]…the chains used by Mr Pratt to secure the load on the day of the incident were manifestly unsuitable for the purpose of preventing movement of the load carried, by reason of their rating and lack of other robust securing measures. The load was a large and heavy piece of construction plant equipment that presented a significant risk of harm to both Mr Pratt and other road users/pedestrians…[paragraph 63] In my opinion the load shift was both foreseeable and entirely preventable through effective securing. A robust securing system, capable of withstanding forces equivalent to the entire weight of the load forward and half the weight to the side and rear, should in my opinion still have been capable of preventing significant load movement even if the vehicle was travelling at a higher speed than it should have.”

• The total vehicle weight (the gross weight) was measured at 72,130KGS. The vehicle therefore required an STGO board to be displayed. No such board was displayed at the time even though one was in the vehicle and could have been used. After the incident the driver located the STGO board but there was nowhere for him to affix the board.

• The maximum permitted speed for this vehicle was 25mph (40kmph) on any road (including a motorway). The average speed of the vehicle for its entire journey was 69.39kmph (43pmh). The maximum speed during that journey was 95kmph (59mph). I noted that Mr I Musto gave evidence in the public inquiry that he still thought the vehicle could be driven at 40mph (64kmph).

• The vehicle required an escort vehicle for the entirety of the journey. No escort vehicle for any part of the journey was used.

• An unsuitable escort vehicle was provided after the incident; the one used was an unmarked white transit van with minimal lighting. The operator stated that the usual vehicle was in the workshop (and therefore it is more likely than not that it would not have been available on the day of the incident in any event).

• An unsuitable risk assessment had been created and used for the specific journey undertaken by Mr Pratt on 17 January 2022. The HSE were clear in their conclusion that the operator did not “…[paragraph 64] appear to have taken the next step of devising a suitable securing system to ensure that the load was safe to transport, nor do they appear to have put in place a robust management system to instruct, inform and supervise drivers in the course of loading and securing loads.”

• The HSE went on to also conclude that “[paragraph 65] the safe loading and securing of unusual loads of this type is, in my opinion, outside the general knowledge and experience of an average HGV driver and drivers cannot reasonably be expected to devise a safe and suitable securing scheme “on the day”. A high-risk and unusual load like the one involved in the incident requires careful advance consideration by the consignor/operator to thoroughly assess the risks of transporting it on the road, devise a suitable securing scheme, and provide drivers with appropriate training, instructions, supervision and equipment to ensure that loads remain in a safe condition from the point of loading through to unloading.”

• They went on to find at paragraph 67; “I do not believe that relying primarily on administrative controls and individual driver knowledge and experience constitutes a safe, robust and effective system for managing the risks of transporting such a large, heavy load on public roads. In my opinion, the utmost care should have been taken to reduce the risk of harm to both the driver and other road users as far as was reasonably practicable.”

• It is therefore more likely than not that the operator’s failings were the cause of this incident because the operator used an unskilled and untrained driver acting under an unsuitable risk assessment that the operator had devised and in addition the operator had not provided proper equipment (the correct type and number of chains) and the operator had failed to properly manage and supervise this driver to ensure that an incident such as this did not happen. The incident was entirely avoidable had the operator done what it was required to do.

• I was unable to deal with the driver at a driver conduct hearing because he no longer held vocational driving entitlement.

As at the date of the incident on 17 January 2022 it was more likely than not that Mr I Musto was not exercising any, or any effective, management of the transport operation to ensure compliance. As a result road safety had been severely compromised.

In cases like this a lot is to be gained by considering how an operator deals with the incident in question. The more serious the incident the more serious the response I expect to see as a regulator.

This was a very serious incident. Remarkably the driver was not immediately suspended pending a formal investigation and disciplinary hearing. In fact no disciplinary action was ever taken against Mr Pratt despite Mr Musto agreeing with me that there were many examples of clear gross misconduct being present. What actually happened was Mr Musto spoke to Mr Pratt informally (if it was formally then no documents signed by the employer and Mr Pratt were presented in evidence to show a formal investigation) and Mr Pratt was then allowed to carry on driving other vehicles for the operator for about two weeks before Mr Pratt resigned. From that I find that Mr I Musto (and as a result, the operator) did not consider this to be serious or to take this incident as anywhere nearly as seriously as it should have been taken. I also find that it is more likely than not the operator did not consider that Mr Pratt had acted as a “rogue” driver or was on a frolic of his own (i.e. working outside what he was told to do by the operator) on the day of the incident because the operator’s lack of disciplinary response to the incident was inconsistent with the operator treating Mr Pratt as a “rogue” driver or him acting on a frolic of his own.

I also expect an operator, faced with an incident such as this, to undertake a root and branch audit of their entire transport operation to ensure that there is complete compliance going forward. That did not happen.

A Traffic Examiner visit report (“TEVR”) was undertaken on 29 June 2022 (163 days after the incident on 17 January 2022) and the following proven findings of fact were made:

• No evidence that the responsible person (Mr I Musto) has relevant training or experience; and

• Director Mr J Musto was not recorded on the operator’s licence; and

• No system was in place to monitor driver CPC, the operator was reliant on the drivers requesting training; and

• There was no evidence produced to show that drivers driving licences were checked other than at the point of employment and then at 6 monthly intervals (they should be checked at quarterly intervals); and

• Driver training was basic and superficial; and

• No investigations into missing mileage was being carried out; and

• No system was in place to monitor Tachograph calibration, the operator was reliant on the maintenance provider to state when it was due; and

At the time of the TEVR it was more likely than not that Mr I Musto was still not exercising any, or any effective, management of the transport operation to ensure compliance.

On 13 January 2023 (361 days after the incident on 17 January 2022) DVSA undertook an announced (so notice was given in advance to the operator) maintenance investigation. That investigation resulted in 6 out of the 12 areas assessed being marked as “unsatisfactory”. Those areas included:

• Ineffective system for forward planning the maintenance of vehicles; and

• Ineffective system for a robust vehicle off road (“VOR”) system in place; and

• Maintenance records not being properly completed with names of inspectors/supervisors completely omitted on two occasions and with no signature on one occasion; and

• The inefficient management of defects reported by drivers; and

• Inadequate maintenance facilities/arrangements in place; and

• No evidence of a system being in place for the maintenance and monitoring of vehicle emissions; and

• Inappropriate system in place to ensure that there is a proper wheel security system; and

• Inappropriate system in place for tyre management; and

• Inadequate management of load security systems [emphasis added given the issue 361 days before]; and

• Little or no evidence of appropriate training for drivers regarding load security [emphasis added given the incident 361 days before]; and

• No evidence that the responsible person (Mr I Musto) had undertaken continual professional development; and

• The responsible person (Mr I Musto) had not demonstrated that they had effective control of the transport operation. At that time the Vehicle Examiner commented “…Mr Musto showed some limited knowledge in some areas of this report and appeared to rely heavily on Annika Palmer the Office Manager [he called her his secretary in the Public Inquiry]…Many of the systems that are in place or have just been put in place appear to be reactive to this announced visit. This is shown by the retorque evidence which only shows evidence for the week of this visit and the safety defect recall checks conducted the day prior to this interview”; and

• The response from the operator to the maintenance investigation also confirmed that the yard manager and office manager were attending transport manager refresher training. However, I noted that neither director was named there so see paragraph “(k)” above.

At the time of this maintenance investigation, 361 days after the incident, it was more likely than not that Mr I Musto was still not exercising any, or any effective, management of the transport operation to ensure compliance and road safety was clearly still being put at risk from the proven findings reached by the Vehicle Examiner.

As at the date of the public inquiry, 505 days since the incident on 17 January 2022, Mr I Musto had still not undertaken any transport related continual professional development.

Vehicle Examiner Coates had been able to look at some of the maintenance related documents provided in response to the Public Inquiry call up letter. However those records revealed:

• There was no evidence of any brake testing for the trailers (I find that to be a road safety critical matter); and

• One record showed a brake chamber marked as broken but there was no brake test undertaken afterwards to show it had been properly repaired and was working properly again (I find that to be a road safety critical matter); and

• The photograph of the wall planner did not show the required 6 months of forward maintenance planning for trailers (I find that is clearly something that can adversely effect road safety); and

• Some areas of repair work did not have a completion date next to them (I find that is also something that can adversely effect road safety as it cannot be demonstrated that the repair was undertaken before the vehicle/trailer went back into service); and

The adverse findings of Vehicle Examiner Coates’ up to date assessment of maintenance documents was not challenged by the operator. The findings of the Vehicle Examiner in the public inquiry showed that it was more likely than not that road safety was still being put at significant risk by the operator.

A certain Mr Jones was proposed to come into the transport operation to act as a transport manager. He had not started yet; the consultancy agreement was dated 01 June (5 days before the Public Inquiry) and it had not been signed by the operator as at the time of the Public Inquiry. There was no persuasive reason as to why Mr Jones could not have started working for the operator before the Public Inquiry.

A transport consultancy company, Alpha Consultancy, had come to see the operation in April 2023. It had advised Mr I Musto that he needed to “clean my act up.”

No audit of any part of the transport operation had been presented for me to see as at the date of the Public Inquiry. Therefore, there was no independent evidence to show what changes had been made (or were recommended) since the Police, HSE and DVSA investigations and whether the operator was now compliant or how far from being compliant it was.

I made enquiry as to why things had not been done sooner, i.e. before the public inquiry given there had been 505 days since the incident on 17 January 2022. I was told by Mr I Musto that his lorries were only 1% of his business , that Annika (initially described in the public inquiry as his secretary and then later on as his office manager) had failed to find anyone to help in time as had Mr I Musto.

I made enquiry as to why Mr I Musto had not done any transport related continual professional development training yet Annika had undertaken a two day course in April. I was told by Mr Musto that he was also due to go on that course but he got a lot of tenders for work from Councils and in April a site visit was requested in Southampton on the same day as the training course. Mr Musto went to that site visit instead (notwithstanding there is a second director who might have gone to that site visit in his stead). Mr Musto agreed that he could have booked himself on another course somewhere in England and Wales and gone on it before the Public Inquiry but he had not done so.

I then asked if there was future (post public inquiry) training booked. There was. Three people were booked to go on a course on 16 June 2023 but Mr I Musto was not one of them. As a result there was not even the prospect of Mr I Musto doing transport related continual professional development.

There were positives put forward in this case:

• There had been no prohibitions (PG9s) including no “S” marked PG9s (the “S” denotes a “significant” failure in maintenance)

• There was a 100% pass rate at MOT

• New people were coming into the transport operation to help including a transport manager and continual use of the transport consultancy firm

• A new digital driver walk round system was being used

• The offer of an undertaking for there to be an audit in 3-6 months time

• Mr Musto was candid about his lack of knowledge

• There had not been anything done deliberately

• There had been a significant wake up call by the whole Public Inquiry process

• The driver went against instructions (but it was conceded that no evidence could be produced to demonstrate this so there is nothing on this point when contrasted to my evidence based findings above)

• There is the likelihood of future compliance

• A suspension of the operator’s licence of 28 days, maybe more, was proportionate regulatory action

• This was not a case where disqualification was needed.

However, despite the positives put forward, as at the date of the public inquiry it was still clear that the general undertakings had not been kept for a very long time because the laws relating to driving and the operation of vehicles were not observed, proper maintenance records were not kept, a vehicle and trailers were not kept in a fit and serviceable condition, there were not sufficient maintenance facilities/arrangements in place and there had been material changes since the start of the licence that had not been reported to the Traffic Commissioner.

Despite the positives put forward, as at the date of the public inquiry (505 days after the incident on 17 January 2022) there were still road safety critical areas of non-compliance present, and as a result breaches to the general undertakings on the operator’s licence.

Despite the positives put forward, as at the date of the public inquiry Mr I Musto was still not exercising effective management control of the transport operation. He accepted that as did his solicitor in closing submissions. There was, being more likely than not, therefore a clear link between that failure and road safety still being put at significant risk.

Despite the positives it was clear to me that not only was Mr Musto not exercising the necessary management control he was also not “constantly monitoring and supervising” the people he had delegated responsibility to. The Transport Tribunal, as it was then, made it clear in the appeal case L56 1999 Alison Jones T/A Jones Motors that all directors of a company that held an operator’s licence had to constantly monitor and supervise all staff, and agents, with delegated responsibility and that did not mean taking things at face value it meant checking, scrutinising and challenging the people and paperwork concerned to make sure that there was operator licence related compliance. In light of the unchallenged evidence of Vehicle Examiner Coates it was more likely than not that Mr Musto had failed to do that given the clear and obvious areas of serious non-compliance identified by the Vehicle Examiner.

I have no way of knowing what the other director, Mr Jack Musto, was actually doing at any point up to the public inquiry because he did not attend the public inquiry and I had not received any documents from him by way of evidence or submissions. I therefore had no ability to asses is competence, capability and management control as it related to the transport operation.

I have undertaken a careful balancing exercise in order to assess the operator as at the date of the public inquiry. The negatives in this case are broken down into several parts. At the time of the incident on 17 January 2022, from my adopted findings and my own findings, the negatives present at that point in time carry extremely significant evidential weight. But for the operator failings this incident is not likely to have occurred because the incident was completely avoidable.

I then moved on to how the operator responded. Significant adverse evidential weight is attached to the failure of the operator to deal with the driver, Mr Pratt, robustly. I have already found that the evidence before me does not support an argument that he was acting as a “rogue” driver and/or on a frolic of his own.

Moving on still further. The operator had 163 days between the incident and the TEVR to do whatever was necessary to assess its compliance and to restore compliance on an ongoing and permanent basis. Yet serious proven adverse findings were made by the Traffic Examiner for issues that should not have been present had the operator undertaken the necessary checks and steps to restore and ensure ongoing compliance. I therefore attached very significant adverse evidential weight to all of those findings.

Moving on even further still. The operator had 361 days between the incident and the maintenance investigation to do exactly the same thing; to restore and ensure ongoing maintenance compliance on a permanent basis. The proven findings of the Vehicle Examiner in the MIVR reveal a significant level of serious non-compliance including under section 9 of the report headed “Load Security” (page 50 of the Public Inquiry bundle) little or no evidence of drivers/staff being trained in relation to load security and inadequate management of load security systems. That is truly remarkable given what happened on 17 January 2022. I attach very significant adverse evidential weight to all of the findings made by the Vehicle Examiner and the absolute maximum adverse evidential weight to the findings made in section 9 of the Vehicle Examiner’s report.

Continuing up to the date of the Public Inquiry, 505 days after the incident on 17 January 2022, the evidence of the Vehicle Examiner (from the up to date maintenance documents he looked at) revealed ongoing road safety critical issues that I have found to be proven. I attached very significant adverse evidential weight to all of those findings.

Given the chronology of events that I have tried to carefully set out, it is difficult to give very much credit for the positives undertaken by this operator until very recently. That is because whatever the operator was (or was not doing) to try and restore and ensure ongoing compliance it was clearly not enough as at the date of the maintenance investigation by DVSA on 13 January 2023. Things started to happen two months later in about April 2023 but by the date of the Public Inquiry they were still not enough done as there was still present the road safety critical issues identified by the Vehicle Examiner.

However, I have given as much credit as I can for all of the positives that have been brought to my attention but I have given virtually no credit for the promises of action in the future, i.e. post public inquiry because they should all have been done, and could have been done, before the public inquiry. There was, after all, 505 days between the date of the incident on 17 January 2022 and the public inquiry for that to all happen.

Therefore undertaking my balancing exercise it is clear that the negatives in this case vastly outweigh the positives in this case as at the date of the public inquiry.

6. Decision and reasons

I have then considered statutory document number 10 issued by the Senior Traffic Commissioner. In particular I had regard to Annex 4 within that document.

I have repeated all of the positives and negatives in this case including the credit I have given to them all. I have again looked at the operator as at the date of the public inquiry.

In my determination this case falls into the “Severe” entry point for regulatory action because of all of the long standing serious issues of non-compliance, the reactive nature of the operator, the lack of any effective management control right up to the date of the public inquiry and the clear and present risk to road safety this operator has presented over the past 505 days including up to the date of the public inquiry despite the investigations by the Police, HSE and DVSA.

I have placed this case towards the lower end of the severe entry point for regulatory after, again, applying the maximum credit I can for all of the positives and because I do not think Mr I Musto deliberately tried to endanger road safety. I think he put virtually everything, including his time and effort, into his demolition business instead of the transport operation (he said transport only made up 1% of his overall demolition business) and that is, probably, why it failed to be compliant.

His pleaded ignorance is no defence though. That has been made clear by the Upper Tribunal in appeal cases such as 2014/024 LA & Z Leonida T/A ETS and 2012/030 MGM Haulage and Recycling Ltd.

In MGM Haulage and Recycling Ltd the Upper Tribunal made it clear that operators are deemed to know the advice and guidance that is in the public domain, for example the Statutory Documents issued by the Senior Traffic Commissioner or the DVSA publication “A Guide To Maintaining Roadworthiness”. Both of which have been in the public domain for over 10 years. The Upper Tribunal were clear in this appeal case when they said an operator cannot say they did not know about such matters.

In the appeal case of LA & Z Leonida TA ETS the Upper Tribunal held that:

“It does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular.”

Next, I have asked myself the question posed by the Upper Tribunal in the appeal case of 2009/225 Priority Freight; how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? Repeating all of my findings I determine that it is entirely proportionate for me to answer that question in the negative because I simply do not trust Mr I Musto to be compliant. His track record is appalling, he has put road safety at significant risk, he repeatedly disregarded compliance and adherence to the very the rules and regulations designed to ensure road safety and as at the date of the public inquiry road safety was still being put at significant risk. In addition, Mr I Musto had not done any transport related continual professional development training as at the date of the public inquiry and he was not booked onto any in the future.

I have already said in paragraph 37 why I cannot take into account the co-director Mr J Musto.

It is therefore proportionate for me to determine that this operator is now unfit to hold an operator’s licence as a result of the acts and omissions of Mr I Musto, and/or the operator’s employees and/or servants and/or agents. The operator’s licence is revoked under section 26(1)(h) of the Act.

Under my discretionary powers it is also, from the proven findings of fact in this case, proportionate to revoke the operator’s licence under sections 26(1)(e), (f) and (h) of the Act.

All orders of revocation take effect at 2345 hours on 17 July 2023. Given my concerns as to road safety that is the maximum period of time I will allow for my decision to be promulgated and for the operator to bring a close to its transport operation.

7. Disqualification and reasons

The fellow director, Mr J Musto was not present at the public inquiry. I was satisfied that it was more likely than not that he had been properly notified of the hearing. It was therefore up to him if he attended or not. For the avoidance of any doubt, as I have already said in my decision, he did not submit any evidence or submissions for me to consider. I further determine that it is fair to make a decision about him in his absence.

This was a bad case right up to the date of the public inquiry. Road safety was severely compromised on 17 January 2022 and had been seriously compromised during the 505 days since then up to the date of the public inquiry.

I have considered the Transport Tribunal (as it was before the Upper Tribunal) appeal case of 2006/27 Fenlon where it was held 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 operator 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.”

I have considered the appeal cases on the subject of disqualification including 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage.

I repeat all of my own and adopted proven findings. Despite all of the credit that I can give to Mr I Musto and his fellow director and this operator, this is a case where disqualification is not only proportionate but it is also necessary to ensure road safety. It is also required to ensure that there is a suitable deterrent to other well informed operators who might otherwise be tempted to think along the lines of “What is the point of spending all of this money, time and effort in being compliant when there will be very little action taken if I am caught being seriously non-compliant?” It would only take a few operators to start thinking like that before the purpose of this jurisdiction was questioned and the public would suffer.

The proportionate regulatory action is that Haywood Crushing Demolition Ltd is disqualified from holding or obtaining any type of operator’s licence in any traffic area under sections 28(1), (3) and (4) of the Act and the period of disqualification starts at 2345 hours on 17 July 2023 and ends at 2345 hours on 17 July 2024 (a one year period of disqualification).

The proportionate regulatory action is that Mr Ian Charles Musto is disqualified from holding or obtaining any type of operator’s licence in any traffic area, from being a director or partner in any company or partnership that holds or applies for any type of operator’s licence in any traffic area and he is also disqualified from being a majority shareholder in a company that applies for or holds any type of operator’s licence in any traffic area or from being a director, or majority shareholder of a company that is a subsidiary to a company that holds or applies for any type of operator’s licence in any traffic area. These orders of disqualification are made under sections 28(1), (3) and (4) of the Act and the period of disqualification starts at 2345 hours on 17 July 2023 and ends at 2345 hours on 17 July 2024 (a one year period of disqualification).

The proportionate regulatory action is that Mr Jack Joseph Musto is disqualified from holding or obtaining any type of operator’s licence in any traffic area, from being a director or partner in any company or partnership that holds or applies for any type of operator’s licence in any traffic area and he is also disqualified from being a majority shareholder in a company that applies for or holds any type of operator’s licence in any traffic area or from being a director, or majority shareholder of a company that is a subsidiary to a company that holds or applies for any type of operator’s licence in any traffic area. These orders of disqualification are made under sections 28(1), (3) and (4) of the Act and the period of disqualification starts at 2345 hours on 17 July 2023 and ends at 2345 hours on 17 July 2024 (a one year period of disqualification).

For context, Statutory Document number 10 makes it clear that an operator, or director, at its first public inquiry where disqualification is considered proportionate, can expect to receive a disqualification period of between one and three years. Despite this being a serious case I have decided to place the period of disqualification at the bottom of that range.

The operator, and its directors, are unequivocally warned that operating any regulated vehicle after 2345 hours on 17 July 2023 is a criminal offence which I would ask the DVSA to prosecute in the criminal courts and doing so also empowers the DVSA to impound any vehicle(s) so operated when there was no valid operator’s licence in force. Messrs I and F Musto now have actual knowledge of the power of DVSA to impound after 2345 hours on 17 July 2023.

The Traffic Commissioner for the West Midlands

Mr M Dorrington.

30 June 2023