Decision

Decision for Pat Boyle Transport Ltd (OM1101420) and Driver Gerard Breen

Published 12 February 2021

IN THE SCOTTISH TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER FOR SCOTLAND

in respect of

1.1 PAT BOYLE TRANSPORT LTD

OM1101420

and

1.2 DRIVER GERARD BREEN

1.3 Public Inquiry and conjoined Driver Conduct Hearing held remotely by videoconference on 25 January 2021

2. Background

Pat Boyle Transport Limited (the operator) has held an operator’s licence since 2011. The operator is authorised to operate 14 vehicles and 20 trailers. It was called to inquiry following the involvement of one of its vehicles in a bridge strike incident in July 2020. Mr Breen, the driver of the vehicle involved, was called to a conjoined driver conduct hearing.

Mr Boyle, the sole director and transport manager of the operator, attended the inquiry on 25 January 2021 and was represented by Mr Kelly, Solicitor. Mr Breen was also in attendance, represented by Mr Sellar, Solicitor.

In advance of the public inquiry Mr Boyle advised that the operator had been involved in a second bridge strike incident in December 2020. I heard evidence in relation to both bridge strike incidents at inquiry.

Mr Kelly lodged documentation on behalf of the operator in advance of the inquiry. It transpired that Mr Breen and Mr Sellar had not had sight of those. Copies of relevant documents were made available to Mr Sellar at the outset of the inquiry and I allowed an adjournment for him to take instructions on those. Mr Sellar was able, thereafter, to confirm that his client was content to proceed to inquiry.

3. Evidence

The first bridge strike occurred at Inverkeilor in July 2020. Mr Breen was driving the vehicle involved and was, at the time, employed by the operator as a driver. The railway bridge in question suffered some damage and the road was closed for two hours.

The second strike also involved a railway bridge. It occurred in December 2020 at Clydebank and involved one of the operator’s vehicles which was being driver by an agency driver. The driver had been doing jobs for the operator for around three months.

Mr Boyle’s concern at the fact that his vehicles had been involved in bridge strike incidents was apparent. The operator was a respected and long-established company which put customer service first. Standards were high. Mr Boyle employed most of his drivers and had a relatively low turnover of staff. His daughter, also a CPC holder, worked with him in the business. Mr Boyle undertook the training of new drivers himself.

Mr Boyle’s vehicles were well maintained and safety was of high importance. As an example, he told me about his proactivity in switching maintenance provider when he had become concerned about the standards being applied by his existing provider. Following the first bridge strike, there had been a desk-based assessment undertaken by DVSA which did not highlight any concerns. His drivers were provided with copy of the Network Rail guidance on avoiding bridge strikes.

In relation to route planning, his evidence was that he knew the roads in Scotland and the North of England ‘like the back of his hand’ and that he was always available to give advice on routes to drivers. He advised that he did sometimes discuss routes with drivers. However, there was only one major job which followed a route that was pre-planned by the operator.

His drivers were used to working with the vehicles he operated and were aware of their heights in various combinations. The heights were displayed in the vehicle cabs and drivers were expected to note the vehicle height in the box provided on the driver defect reporting form during their walkround check. Mr Boyle expected drivers to use their skills and experience to plan routes which avoided hazards such as low bridges.

Mr Boyle told me that intended to purchase a vehicle height measuring device from the RHA in the near future. There was sat nav equipment pre-installed in his leased vehicles. He did not currently know how to use that but intended to look into how that could be utilised by drivers in the future.

In relation to the bridge strikes themselves Mr Boyle told me that, on the first occasion, several of the company’s vehicles had to be re-routed because of a road closure. Instructions were given by telephone to the drivers, including Mr Breen, that they should follow a specific alternative route. The alternative route had been planned to avoid low bridges.

All of the drivers, with the exception of Mr Breen, appeared to have followed instructions and taken the specified alternative route. Mr Boyle indicated that he had understood Mr Breen to have chosen to follow his own sat nav, rather than act on the instructions he had been given. Mr Breen, however, denied that and advised that he must have misunderstood the instructions. He had thought that the route that he had followed was a suitable alternative in line with the instructions he had received.

Mr Sellar drew my attention to geography around the junction at which the diversion onto the new route was supposed to have been taken by Mr Breen. The guidance which had been given to the drivers had referred to shops and traffic lights as landmarks. The layout of those on the ground meant there was potential for confusion. I concluded that Mr Breen’s detour from the prescribed alternative route could indeed have arisen from a misunderstanding or miscommunication, rather than in defiance of direct instructions.

Upon taking the detour he did, Mr Breen hit the railway bridge at Inverkeilor. He accepted full responsibility for the incident. He knew that he was pulling a hi cube container and he knew what the total height of his vehicle was. He drove that combination regularly. The height was also displayed accurately on the indicator in the cab. He had seen the signs displaying the bridge height on the approach to the bridge and was fully aware of its height.

Mr Breen had been over and over the incident in his mind and, notwithstanding all he knew, as he approached the bridge he convinced himself that he was pulling a smaller sized container of a sort also regularly used by the operator. He could only describe what had happened as a ‘brain freeze’. Mr Breen was issued with a fixed penalty notice in relation to the incident by the police. He deeply regretted the incident. He was dismissed from his employment at Pat Boyle Transport as a result of it.

Mr Boyle advised that second bridge strike incident had been caused by an agency driver who had struck a bridge on his way to Chivas near Clydebank. The driver had not driven to the location in question whilst working for Mr Boyle before, but Mr Boyle believed that he had driven there many times before for other operators.

Mr Boyle hadn’t changed his procedures in relation to route planning since the first bridge strike incident. He advised that he did not discuss a route plan with the driver, and his position was that the driver should have known better than to take the route that he did. The driver was issued with a fixed penalty notice by the police.

It was identified after the incident that the vehicle height displayed in the cab on this occasion was set at 14 foot 9 inches. The height indicator was therefore set some 2 inches higher than the actual height of the vehicle on that day. It was, nevertheless, incorrect. The road was not closed following the incident and the operator had not received any communication in relation to it from Network Rail.

4. Decision

4.1 Pat Boyle Transport Ltd

There were many positives in this operator’s case. It has a good reputation, with customer service to the fore. It runs a modern, well maintained, fleet and employs most of its drivers. There had been a satisfactory desk-based assessment carried out by DVSA in relation to the systems used to manage the transport operation following the first bridge strike. No previous concerns had been brought to my attention in relation to it.

Mr Boyle had taken the action I would except of a responsible operator when he became concerned about standards of maintenance offered by his provider. I noted that he had brought the second bridge strike to my attention voluntarily, but I would have expected such a disclosure to have been made given the nature of the call to inquiry in the first place.

Nevertheless, the operator had been involved in two bridge strikes within six months of each other. After careful consideration of the evidence, I cannot conclude that there was anything more the operator could have done to prevent the first bridge strike incident. The route being driven was pre-planned by the operator and, following a road closure, instructions were given to drivers in the only reasonable manner they could have been to follow an alternative route. The alternative route had been planned to avoid low bridges. The correct vehicle height was displayed in the vehicle cab. Mr Breen was an employed driver. He was familiar with the vehicle combinations used by the operator and the overall heights of the vehicles. He did not follow the diversion instructions, but there was no basis upon which to conclude that happened because of any fault on the part of the operator.

The second strike however, involved a relatively new (to the operator) agency driver. Mr Boyle’s evidence was that he had not given specific route guidance to the driver. He believed that the driver had driven the route before for other operators and had relied on the driver’s knowledge and experience to take an appropriate route and avoid hazards.

In submission, Mr Kelly urged me not to take a prescriptive view in relation to route planning. He referred me to decision of the Upper Tribunal in T/2019/54 Bridgestep. It was acceptable for route planning to be left to drivers and it would be unnecessarily burdensome to expect operators to provide detailed written route plans for every journey. I agree with Mr Kelly’s submission on that point.

However, there are clearly circumstances in which a higher degree of intervention or oversight will be required. In Bridgestep the Upper Tribunal stated:

“…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…”

Where route planning is to be left to drivers, steps must be taken to ensure that is effective

“…If a company is going to rely solely upon its drivers to plan routes which eliminate the risks to road safety, including bridge strikes, the drivers must be provided with adequate information about the vehicles they are driving. It is all very well emphasising that the company’s drivers were required to check the height of the trailer scribed on its headboard and that regular compliance checks were made to ensure that the drivers set the in cab height indicator to that height, but if that height is wrong and/or does not represent the actual ride height of the trailer, then that is a different matter…”

The operator in this case advises that in house training is made available to drivers. It has systems in place (including in cab height indicators) to ensure drivers are aware of the heights of their vehicles, and drivers are required to note that on the daily defect reporting form. There was no evidence to suggest that the systems in place were not equally applied in relation to agency drivers.

However, where an operator chooses to engage agency drivers, or indeed any other driver who is not well known to them, they should be alive to the increased risks that may arise as a result. The relationship of trust usually built up in an employment relationship between an operator and an employed driver, and the comfort that an operator may obtain from repeated observations of safe driving, is unlikely to be present. Such drivers may not be familiar with the types/combinations of vehicles which an operator uses and, even if training is offered, the ad hoc nature of agency work may itself give rise to increased risk.

In my view, an operator is unlikely to meet the standard expected if it chooses to place sole reliance on a relatively unknown driver’s competence as a means of avoiding bridge strikes. Operators and transport managers have an obligation to ensure that: that the operator’s vehicles are operated without risk to road safety; the risk of bridge strikes is assessed; and route planning is carried out in advance to eliminate that risk. The evidence was that the agency driver in this case had done jobs for the operator over a three month period. There was no evidence before me to demonstrate that any risk assessment had taken place, or that even basic checks had been made to ensure that the driver had given the required attention to route planning.

In addition, the vehicle height displayed in the cab on the occasion of the second bridge strike was wrong. It indicated a height which was higher than the vehicle in its current combination but it was, nevertheless, inaccurate. That evidence indicates that the operator’s system for ensuring that vehicle heights are accurately displayed and recorded is not sufficiently robust.

I was concerned that it had not occurred to Mr Boyle after the first bridge strike that he should seek to implement the use of the built in sat nav equipment in his vehicles, particularly given that such a suggestion is made in the Network Rail guide for transport managers. He told me that he was going to look into that immediately following the public inquiry. He also intended to purchase a vehicle measuring device from the RHA.

In Mr Kelly’s submission, the starting point for consideration of regulatory action against this operator was moderate to low. Having regard to the many positives I have identified in this case, even considering the concerns which have arisen in relation to the second bridge strike, I agree with that submission. I also note that the economic impact of the bridge strikes in this case was fairly limited and, on both occasions, the police saw fit to offer fixed penalty notices to the drivers in question.

However, the operator, and Mr Boyle as transport manager, have not been as diligent as they should have been in seeking to eliminate the risk of bridge strikes. There are systems in place but they need to be made more robust. Mr Boyle must be more proactive and, in future, he should carry out appropriate assessments aimed at eliminating the risk of bridge strikes. He should, as he has promised, implement and enforce the use of the inbuilt sat nav systems in his vehicles, and provide accurate measuring equipment for use, without delay.

Having had regard to starting points set out in the Senior Traffic Commissioner’s Statutory Document No.10 I have decided to curtail this licence to twelve vehicles. That curtailment will take effect from 8 February 2021. According to the submissions made by Mr Kelly on the operator’s behalf such action should not materially affect the transport operation. However, if there is to be an application for an increase in the future, that application will require to be assessed by a Traffic Commissioner to ensure that the remedial action promised has been taken. I find this operator’s repute to be tarnished, but not lost.

4.2 Driver Breen

I took time to consider all the evidence in relation to Mr Breen’s involvement in the bridge strike incident in July 2020. There was no real dispute in relation to the facts and, as set out earlier in this decision, I found that there could have been a miscommunication or a misunderstanding on the part of Mr Breen in relation to the alternative route guidance which had been issued following the road closure.

Mr Breen accepted full responsibility for the incident. He was aware of the height of his vehicle when he left the yard in the morning and the correct vehicle height was displayed on the indicator in the cab. He saw the road signs advising of the bridge height but had convinced himself in the moment that he was driving a vehicle of a lower height. He had been over the incident repeatedly in his mind and could only describe what happened as a ‘brain freeze’.

I was assisted by Mr Sellar’s submissions. He acknowledged that the starting point for regulatory action set out in the current version of the Senior Traffic Commissioner’s Statutory Document No.6 was revocation and disqualification for a period of 6 months.

Mr Breen, however, was an experienced driver having held his ordinary driving licence for 25 years. He had a clean record, but for the bridge strike incident, and had worked for a series of responsible and well-respected operators. He had been employed by Mr Boyle for almost a year when the bridge strike happened and deeply regretted the trouble it had caused. He had lost his job over it. The damage to the bridge hit by Mr Breen had been limited and the police had seen fit to issue a fixed penalty rather than to refer matters to the procurator fiscal for prosecution.

I noted that Mr Breen’s bridge strike incident predated the publication of the current version of Statutory Document No 6. Accordingly, I do not consider myself bound to have regard to the starting point for regulatory action in cases of bridge strike indicated therein. However, that starting point is, when read with the directions set out in paragraphs 91 and 92, useful in indicating the weight that Traffic Commissioners should attach to issue of bridge strikes. Mr Sellar’s submission was, that having regard to the positives in Mr Breen’s case, I was able to stop short of revocation and disqualification and consider the imposition of a period of suspension as an alternative.

I found Mr Breen’s candour at inquiry much to his credit. He acknowledged the seriousness of the incident. He did not seek to avoid responsibility and accepted that it had happened due to carelessness on his part. At the time of the inquiry, six months had passed since the incident and Mr Breen was in employment with a new operator. Importantly, apart from the bridge strike, Mr Breen had an exemplary driving record.

Accordingly, I am prepared to stop short of revocation and instead impose a period of suspension of Mr Breen’s vocational LGV driving entitlement for 6 weeks with effect from 19 February 2021. That period of suspension reflects the serious nature of Mr Breen’s conduct and will serve as reminder to avoid carelessness in the future, but also acknowledges the many positive aspects which I have found in his case.

Claire M Gilmore

Traffic Commissioner for Scotland

4 February 2021