Decision

Decision for Robert Christopher Wainwright

Published 9 February 2024

0.1 EAST OF ENGLAND TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HELD IN CAMBRIDGE ON 18 JANUARY 2024

2.1 OPERATOR: ROBERT CHRISTOPHER WAINWRIGHT LICENCE OF1089420

3. Background

Robert Christopher Wainwright holds a standard national goods vehicle operator’s licence (OF1089420) for four vehicles and four trailers. There are no vehicles currently specified on the licence: the most recent vehicle on the licence was removed on 19 December 2023. Robert Christopher Wainwright is also the nominated transport manager. Preventative maintenance inspections are carried out every six weeks by Mr Wainwright at his operating centre.

4. Previous public inquiry

Mr Wainwright was called to a public inquiry in February 2017, when he was found to have failed to fulfil undertakings to keep vehicles fit and serviceable, to ensure that rules relating to drivers’ hours and tachographs were observed, to keep maintenance records for 15 months and to ensure that drivers recorded defects in writing. His application for an increase in vehicle authority was refused  at that inquiry: his licence was instead curtailed from four vehicles to three for two months. Mr Wainwright was given a formal warning in his capacity as transport manager but retained his good repute.

5. DVSA report

On 4 July 2022, one of the vehicles at that time specified on Mr Wainwright’s licence (DK57 ANF) was stopped at the roadside by DVSA. Traffic examiner Christopher Eggins found that the driver, Darren Naylor, had driven without a tachograph card on ten occasions within the past 28 days. The vehicle was also given an immediate prohibition for defective brakes. Further investigation by DVSA showed that the vehicle had been driven for 1520 km without a card on 48 occasions between 31 January 2022 and 4 July 2022. Many of these instances had clearly been intended to disguise driving for more than 4.5 hours or failure to take sufficient daily rest. Interviewed later under caution, Mr Naylor admitted that he had been “stupid” and had just “lost his head”. He had “just wanted to get done and back”. Mr Naylor was issued with four fixed penalty notices to the total value of £600.

Mr Eggins’s follow-up with the operator on 5 July 2022 revealed that the tachograph unit of vehicle DK57 ANF had not been downloaded since 23 March 2021, more than 15 months previously. Mr Wainwright claimed that the company tachograph card was locked in a safe and he did not have access to the key. Mr Eggins reported, however, that the tachograph units of the other vehicles on the licence seemed to have been downloaded during this period.

6. Public inquiry

In the light of this report, the Mr Wainwright was called to a public inquiry, both as operator and as transport manager to consider his good repute. Another factor in the decision to call him to an inquiry was the high prohibition rate - eight prohibitions from 20 encounters in five years, of which five were immediate prohibitions (including one S-marked prohibition, denoting a significant failure in the operator’s maintenance system). The MOT failure rate over the same five year period was very high at 67% - eight initial failures from 12 presentations.  

The call-up letters to operator and transport manager were sent on 13 December 2023, with the public inquiry due to take place in Cambridge on 18 January 2024. The case management directions enclosed with the call-up letters asked Mr Wainwright to submit evidence of finances along with maintenance and drivers’ hours records by 4 January 2024. Nothing was submitted by this date or in advance of the inquiry: Mr Wainwright produced the requested evidence only on the day of the inquiry.

In looking over the maintenance and drivers’ hours records belatedly produced, I noted the following issues of concern:

• the preventative maintenance inspection (PMI) sheets produced did not record any information on tyre tread depths or pressures (although the operator had incurred tyre-related prohibitions);

• there was no evidence of any brake tests having been carried out. The majority of the PMI sheets were blank in the brake testing section, although occasionally there was a comment such as “good” or “vary good” [sic]. There were no other brake testing records such as roller brake test or decelerometer print-outs;

• none of the 37 PMI records submitted for DK57 ANF (covering the period October 2019 to January 2024) identified any defects at all with the vehicle (now 16 years old);

• although two other vehicles have been specified on the licence within the last 15 months, no records for them were submitted;

• DK57 ANF had failed its MOT on 28 November 2023 on exhaust emissions, steering, brake systems and components, lamps and aim of headlamps, with advisories given relating to an oil leak, condition of tyres, a crack in the windscreen and condition of the chassis. The PMI carried out by Mr Wainwright on 27 November 2023, the day before the MOT, recorded no defects at all;

• none of the driver walk-round checks had ever reported any defects with the vehicle;

• drivers’ hours infringement reports were dated 3 January 2023, 13 March 2023 and 27 November 2023, suggesting that downloads might not be being carried out at least every 28 days (the legal requirement).

I asked Mr Wainwright about these issues. He stated that roller brake tests had been carried out but that there were no print-outs of the results. He did not record the tread depths of the tyres because he knew they were in good condition. The reason no defects were recorded on the PMI sheets was that he was recording the condition of the vehicle after he had repaired it. Similarly with the driver – no defects were recorded on the walk-round checks because the vehicle had already been put into a roadworthy condition. He was very cautious about safety: he had been in the industry for 40 years and his vehicles had always been in a good condition.

When I suggested that the prohibition and MOT pass rates presented a different picture, Mr Wainwright bridled. He stated that each of the failure items from the MOT on 28 November 2023 had in reality been trivial. DVSA were always out to find fault, whether at MOT or when they stopped his vehicle at the roadside. When I suggested that the PMI records were not a true picture of the condition of the vehicle, Mr Wainwright invited me to “stick your operator licence where the sun don’t shine”.

Mr Wainwright, to do him justice, calmed down thereafter and accepted that he might be a bit stubborn. But he was not out to cause harm or grief to anyone. He intended to retire when the licence came up for renewal in April 2025.

On the issue of failing to download the tachograph unit of DK57 ANF, Mr Wainwright accepted that he should have applied for a new company tachograph card as he had lost access to the original which was locked in a safe to which the key had been taken away by someone. Again, it had been stubbornness on his part.

I adjourned the inquiry at this point in order to give Mr Wainwright some extra time to produce evidence of appropriate financial standing – financial standing was dependent on an overdraft the evidence for which was unclear. I gave Mr Wainwright until close of business on 24 January to provide evidence of the overdraft.

7. Further information

On 22 January 2024 Mr Wainwright emailed the inquiry clerk, stating that he had demonstrated financial standing by means of a declaration four years ago and had assumed that this would last for the five year life of the licence. He added that “on further thought I feel that I have been penalized [sic] and constantly harassed and you have managed to turn everything into a major drama. I have decided after 40 years of battle with your selves, a family business since 1934 now comes to an end.  I have today surrender my license [sic] before you give me a heart attack on advice from my cardiologist.” A picture of a white flag was appended to the email.

Because the inquiry had already taken place and some serious shortcomings had been revealed, I decided not to accept the surrender but to proceed to a written decision.

8. Findings 

After having considered the evidence, I make the following findings:

Mr Wainwright’s vehicles have been subject to numerous prohibitions over the last five years (Section 26(1)(c )(iii) of the 1995 Act refers) for issues including defective brakes, loose wheel nuts and damaged or illegal tyres;

Mr Wainwright’s agents or servants have been issued with fixed penalties (Section 26(1)(ca) refers) – Mr Naylor having been issued with four fixed penalties in July 2022;

M Wainwright has failed to fulfil his undertakings:

• to keep vehicles fit and serviceable. The MOT failure rate is exceptionally high (67%) and the prohibition rate (40%) is twice the national average;

• that drivers would report defects in writing. No defects have been reported, which is simply not credible for a 16 year old vehicle (and is contrary to what DVSA have tended to find when they encounter the vehicle);

• to ensure that rules relating to drivers’ hours and tachographs are observed. The tachograph unit of DK57 ANF was not downloaded for more than 15 months. A driver drove on numerous occasions without a card, aiming to disguise serious offences of driving for more than 4.5 hours. This was completely undetected by Mr Wainwright;

Mr Wainwright lacks financial standing for four vehicles (Section 27(1)(a) refers). He failed to provide the necessary evidence of an overdraft which might have helped him to demonstrate financial standing;

Mr Wainwright is not of good repute as an operator or transport manager (Section 27(1)(a) and (b) and Schedule 3 of the 1995 Act refer). I was not impressed by the fact that he sought to blame everyone but himself for the predicament he was in. He preferred to believe that he was wrongly persecuted by DVSA and the traffic commissioner’s office rather than consider – from the voluminous evidence provided by the many prohibitions and MOT failures -  that there might be something wrong with his maintenance system. He has continued to manage the licence with exactly the same shortcomings which were found at the public inquiry in 2017 when his licence was curtailed. His lack of acceptance that he has in any way failed to run a compliant operation or has anything to learn, persuades me that there is no likelihood of him effecting any improvement in the future. He has failed to exercise the required continuous and effective management of the transport activities of the business and therefore cannot retain his good repute.

9. Consideration

9.1 Balancing act

I weighed up the negative against the positive issues. On the negative side were the above findings. I found nothing substantive on the positive side of the balance.

9.2 Priority Freight and Bryan Haulage questions

I asked myself the Priority Freight question of how likely it is that the operator would comply in future. I acknowledge that Mr Wainwright now wishes to surrender the licence so the question is somewhat abstract. However, it is clear to me from his past record and the very substantial compliance failings found at this public inquiry, together with his truculent attitude and inability to see that he has failed to manage according to the standards expected in 2023 (rather than in 1983), that it is highly unlikely that he would ever be able to operate compliantly.

A negative answer to the Priority Freight question tends to lead to an affirmative answer to the Bryan Haulage question  - does the operator deserve to go out of business? Again, the question is somewhat academic because Mr Wainwright has attempted to surrender his licence, but the range, duration and seriousness of the issues found lead me to conclude that he does indeed deserve to be put out of the road haulage business.

10. Decisions

10.1 Licence revocation

Because I have found that the operator has failed to demonstrate financial standing and lacks a transport manager of good repute, as well as lacking good repute itself, revocation of the licence is mandatory under Section 27(1)(a) and (b). I am also revoking it under Section 26(1)(c )(iii), (ca) and (f) of the 1995 Act. The revocation will take effect at 0001 hours on 1 February 2024, reflecting the fact that in practice operations have already ceased.

10.2 Disqualification - as transport manager

Having found that Mr Wainwright has lost his good repute as transport manager pursuant to paragraph 1 of Schedule 3 to the 1995 Act, I must also disqualify him under paragraph 16 of that Schedule from acting as a transport manager in the future. I do so for an indefinite period of time, as I do not consider that Mr Wainwright has the right mindset to be able to perform to the expected standards of a modern day transport manager.

10.3 Disqualification – operator

For the reasons outlined above, and having performed the same balancing act, I conclude that Mr Wainwright should be disqualified under Section 28 from holding or obtaining an operator’s licence in the future and from being the director of any company holding or obtaining such a licence. In deciding upon the length of the disqualification, I have taken account of paragraph 108 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This states that for a first inquiry a disqualification of between one and three years could be appropriate. In serious cases where, for example, there are persistent operator licence failures, a disqualification of between five and ten years may be merited. This is Mr Wainwright’s second public inquiry as operator, and there have been persistent failures. From the tone of his email of 22 January 2024 it is clear that he has no intention of ever operating again. But just in case he reconsiders, I consider it necessary to formalise this. Because of Mr Wainwright’s inability to accept the parameters of the regulatory regime and his blindness to the fact that his maintenance standards and practices have been found to be substantially wanting, I conclude that the disqualification should be indefinite.

10.4 Nicholas Denton

Deputy Traffic Commissioner

26 January 2024