Decision

Decision for SAMUEL HUNTER T/A HUNTER TRANSPORT

Published 10 December 2021

0.1 IN THE SCOTTISH TRAFFIC AREA

1. WRITTEN CONFIRMATION OF ORAL DECISION GIVEN ON 25 NOVEMBER 2021 BY THE TRAFFIC COMMISSIONER FOR SCOTLAND

In the matter of

1.1 SAMUEL HUNTER T/A HUNTER TRANSPORT OM1000946

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2. Decisions

(a) Pursuant to adverse findings in terms of sections 6, 26(1)(c), 26(1)(f), 26(1)(h) and section 27(1)(a) of the Good Vehicles (Licensing of Operators) Act 1995 (the 1995 Act) the operator’s licence of Samuel Hunter t/a Hunter transport OM1000946 is revoked with effect from 23:59 on 27 November 2021.

(b) Mr Samuel Hunter is disqualified from holding an operator’s licence for a period of five years with effect from 23:59 on 27 November 2021. I direct that section 28(4) of the 1995 Act shall apply.

3. Evidence

A report by Traffic Examiner (TE) Laura Scott, dated 26 July 2021, was received by my office. The report highlighted significant shortcomings in relation to Mr Hunter’s (the operator) systems for managing drivers’ hours. 245 offences had been identified over a period of around three months, including numerous and serious instances of driving off card and falsification of records by drivers who were found to be using other driver cards.

It was also alleged that Mr Hunter had operated vehicles in excess of the number which his licence authorised, had not been truthful with DVSA in the course of their investigation, had failed to notify convictions on the part of his employees and that he had operated for many years with a transport manager ‘in name only’ on the licence. At inquiry, Mr Hunter advised that he did not dispute the evidence or findings in TE Scott’s report. Accordingly, I simply adopt the report herein brevitatis causa.

I heard evidence at inquiry from TE Haddow. TE Haddow had carried out many of the interviews in the course of the investigation and was familiar with the findings of TE Scott. I also heard evidence from three of the operator’s drivers – Mr David Hunter (Samuel Hunter’s son) Mr Bowern and Mr Tarasinski. All three drivers attended conjoined driver conduct hearings for consideration of their fitness to hold their vocational entitlements following allegations that they had committed driver’s hours and/or falsification offences. I also heard evidence from the operator.

The operator had lodged productions in advance of the inquiry, including some maintenance records and drivers’ hours documentation. I had regard to all of the productions, including those lodged on behalf of the operator in reaching my decision.

TE Haddow referred to the findings in the DVSA report. She was very concerned that Mr Hunter sought to blame his drivers for everything. Her opinion was that the operator’s failure to have any systems to identify and manage offending and infringements on the part of drivers had facilitated serious offending. Moreover, she considered that it must have been obvious to Mr Hunter that some of the work he was asking drivers to do could not be done lawfully within the drivers’ hours rules. Mr Hunter should, and would, have known if he had cared to undertake any analysis that the law was repeatedly being broken by his drivers.

Mr David Hunter, the operator’s son, told me he was a fairly new HGV driver, having only had his licence since 2019. He worked for his father. There were no allegations of falsification on his part, but there were a series of minor drivers’ hours offences which he put down largely to ferry movements. I was advised by TE Haddow at the outset of the hearing, however, that he had been convicted of using a mobile phone whilst driving his lorry in September 2021, an offence which the operator failed to notify to my office. Mr Hunter was undertaking his CPC qualification and intended taking over his father’s business as soon as he could.

Mr Bowern admitted that he had committed several drivers’ hours offences, including two incidences of driving without a card. He told me that he deeply regretted his offending. He was a straight driver and had pulled his card on two occasions as a result of stress and pressure.

Mr Bowern advised that he had never been asked by the operator to falsify records but spoke of the culture of pressure in which he would be criticised if he didn’t make journeys on time. He had eventually had enough and was working for another operator now. He advised that he knew another one of the operator’s drivers, Mr Clyman, was using another driver’s card. He had spoken to him about it and discouraged him from doing so. He had never, in the three and a half years he had worked for the operator, met the transport manager Mr McKay.

Mr Tarasinski’s evidence was that he was under pressure from the operator to make journeys in time. He had never met the transport manager either. He was trying not to make problems for the operator and so had repeatedly falsified records by using another driver’s card to conceal rest offences. He was deeply sorry for what he had done. The card he had been using belonged to his brother in law, and he had found it in his car. He wasn’t aware of a culture of falsification amongst the operator’s drivers and he had not been asked by the operator to falsify records. However, he felt unable to complete his work sometimes without doing so.

The operator began by telling me that he accepted everything that had been said by the TE. He was sorry for his failings. He accepted that the undertakings on his operator licence in relation to complying with the rules on drivers’ hours had not been adhered to.

The operator also admitted, despite the fact that he had repeatedly advised DVSA officers to the contrary, that he did not have any systems in place to analyse driver activity. He accepted that a significant number of the 245 infringements were extremely serious and conceded that his failures had given rise to a serious risk to road safety and affected fair competition. He did not, however, accept that the drivers couldn’t complete the journeys he was allocating them within the law – it was tight, but he had done so himself many times.

The operator’s evidence at his interview with DVSA had been that it had all been the drivers’ fault. He considered that he should have been able to rely on them to drive within the law. At inquiry, he conceded that he should have had systems to check, but he still appeared to be of the view that all his troubles had arisen as a result of the driver’s actions. He accepted that he had operated vehicles in excess of his authorisation under explanation that he had bought two news ones and it was around the time they were changing over.

Under questioning from me, the operator disclosed that the transport manager had only properly acted as such for the first two years of his appointment, which had been around 15 years ago. He told me that systems had now improved, and that the intention was that David, his son, would take over the business. David had started his CPC exams but there had been a change in the exam system which meant he had to start all over again. No alternative transport manager was put forward by the operator in advance of the inquiry.

TE Haddow had reviewed the documentation relating to drivers’ hours in advance of the inquiry and prepared and addendum report. Her evidence was that there were still a large number of different drivers driving the operator’s vehicles, many on a casual or ad hoc basis, but there did not appear to be any information showing the operator was checking all drivers’ driving times or entitlements.

The maintenance information submitted for the inquiry showed obvious defects such as tyre damage, which should have been picked up during walkround checks, were still present at maintenance inspections. The operator could not offer any explanation for that, nor could he explain how he checked that driver walkrounds were being carried out properly.

The operator accepted that he had not been truthful with DVSA. He had, however, come clean with me at inquiry about his shortcomings. He apologised for his actions. He had purchased a new fish business, and it was his intention to take a step back when David was qualified and concentrate on the business rather than transport. If he lost his licence, then 14 or 15 people would lose their jobs. The business was also his son’s future.

4. Reasons

I gave careful consideration to all of the evidence before me in reaching my decision. It was not disputed that the licence undertakings had not been complied with regarding compliance with the laws on driving. 245 drivers’ hours infringements had been identified by DVSA in their investigation over a short period. Those included gravely serious and widespread falsification offences.

Those offences had gone unnoticed because the operator had failed to carry out any analysis of his drivers’ activity. He had used vehicles in excess of the authorisation on his operator’s licence for several days in May 2020. He had failed to notify my office of the conviction of one of his employees for a driving offence. The evidence provided by the operator for the inquiry disclosed that there were still significant deficiencies in his systems for maintaining vehicles and ensuring the laws on driving were being adhered to. Formal findings in terms of Section 6, 26(1)(c) 26(1)(f) and 26(1)(h) of the 1995 Act are therefore made out.

The transport manager on this licence is a transport manager in ‘name only’. A finding in terms of section 27(1) is also, therefore, made out. Revocation of the licence is mandatory on that basis. I was not asked to consider a period of grace, however for the sake of completeness, there was no evidence before me to suggest that professional competence could be regained in the immediate future.

This was a serious case. Of grave concern in this case was the fact that the operator had allowed a ‘name only’ transport manager arrangement to exist for over a decade. Many years have therefore passed with no one exercising continuous and effective management of this transport operation. That absence of management had permitted repeat and serious offending to go unchecked. When pressed at inquiry, the operator conceded that he knew that such arrangement was unacceptable but he had continued with it anyway.

The operator only admitted the length of time his transport manager arrangements had been ‘name only’ during the inquiry. At interview in 2020, he told TE Haddow that Mr McKay was still visiting, and then changed his evidence when Mr McKay’s email advising of his ‘resignation’ was put to him. He also told TE Haddow and TE Scott that his partner was analysing his drivers’ data. He conceded at inquiry that was not true. I find the operator’s conduct in making those statements to DVSA would be viewed, by the standards of an ordinary person, as dishonest.

Moreover, I did not believe the operator’s claim to believe that all the journeys he allocated to his drivers could all be completed lawfully and within time. Two of the drivers who gave evidence spoke of a culture of pressure which led to them offending to try and complete their journeys on time. The operator did not ask his drivers to break the law, but the culture of pressure he created, coupled with his deliberate failure to monitor driving activity, actively encouraged it.

I considered that the operator’s willingness to deceive, coupled with his wilful neglect and repeated failings, demonstrated a flagrant disregard for the operator licensing regime on his part. Such behaviour led me to conclude that I was unable to trust this operator in the future. In 2006/277 Michael James Fenlon t/a County Skips the Tribunal said:

‘It has been said on many occasions 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 operators 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.’

There were few positives in this case. However, to his credit, the operator did not attempt to waste my time with excuses at inquiry. He accepted that he had done wrong and apologised for his behaviour. The evidence lodged in advance of the inquiry showed that there had been limited improvements in compliance. I also noted that he had purchased a new business which he hoped would grow going forward. He told me that other people also relied on him for work, and if he went out of business, they would lose their jobs.

Nevertheless, in balancing, I find the negatives to far outweigh the positives in this case. There have been persistent failures on the part of this operator address critical road safety matters. His dereliction of duty and wilful disregard for the laws on driving is one of the worst that I have seen. This case therefore falls within the starting point of severe in the Senior Traffic Commissioner’s statutory document No.10. I am directed, therefore, to consider revocation and disqualification amongst other serious regulatory sanctions at my disposal

I have addressed my mind to the Priority Freight question. This operator has lost my trust. Deficiencies in compliance still exist as at the date of the inquiry. I cannot therefore be satisfied that this operator will comply in the future. Given the magnitude of is failings, and the serious impacts on road safety and fair competition which they have given rise to, I am satisfied that I must also answer the Bryan Haulage question in the affirmative. I find this operator has lost his repute and should indeed be put out of business.

Revocation of the licence, on the statutory grounds identified, is a proportionate response. Revocation is also mandatory in terms of section 27(1) of the 1995 Act.

I moved to consider whether I should exercise my powers of disqualification. I had regard to the Senior Traffic Commissioner’s Statutory Document No. 10: Principles of Decision Making, in particular, Annex 3 in reaching my decision. I also reminded myself of the authority in T/2010/29 David Finch Haulage. In that case, the Transport Tribunal said:

“The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary…”

The Senior Traffic Commissioner’s guidance states that serious cases may merit disqualification of between five and ten years, or even for an indefinite period. Notwithstanding that fact that this was the operator’s first public inquiry, the Upper Tribunal made clear in T/2014/40 & 41 C G Cargo Ltd (Operator) & Sukwinder Singh Sandhu (Director) the serious case may merit longer periods of disqualification. This was a bad case, even by the standards of an experienced TE. The sheer number of infringements identified, my findings of dishonesty and the length of time this operator has failed to ensure he was professionally competent, make this a case where disqualification is necessary to meet the objectives of the operator licensing regime.

I have decided that I can hold back, having regard to the few positives I have identified, from disqualifying this operator for an indefinite period. However, a lengthy period of disqualification is justified and proportionate in all the circumstances. I therefore disqualify Mr Samuel Hunter from holding an operator licence for a period of five years with effect from 23:59 on 27th November 2021.

I also direct that section 28(4) of the 1995 Act should apply for the same period, in that if Mr Hunter is a director of, or holds a controlling interest a company which holds an operator’s licence or is the director of a company which is a subsidiary of such a company, or operates any goods vehicles in partnership with a person who holds such a licence then the licence of that company or, as the case may be, of that person, shall be liable to revocation, suspension or curtailment under section 26 of the Act.

Ms Claire Marie Gilmore

Traffic Commissioner for Scotland

25/11/2021