Decision

Written decision for S & J Transport Ltd

Published 7 October 2020

Licence: OD1043508

Decision of the Traffic Commissioner for the West Midlands.

Public Inquiry held in Birmingham on 13 February and 31 July 2020

1. Decision

1. The standard national goods vehicle operator’s licence OD1043508 held by S & J Transport Ltd is revoked with effect from 0001 hours on 1 October 2020, pursuant to Section 26(1)(c)(i) and (ii) and (f) and Section 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995.

2. The company S & J Transport Ltd, its former director Stephen Michael Adams and current director Jane Elizabeth Adams are each disqualified for five years, from 1 October 2020 until 1 October 2025, from holding or obtaining any type of operator’s licence in any traffic area and (in Mr and Mrs Adams’s case) from being the directors of any company holding or obtaining such a licence, pursuant to Section 28 (1), (4) and (5) of the 1995 Act.

3. Stephen Michael Adams has lost his good repute as a transport manager, pursuant to schedule 3 paragraph 1 of the 1995 Act. Under paragraph 16(2) of that schedule, he is disqualified, with immediate effect and for an indefinite period of time, from acting as a transport manager on any operator’s licence.

2. Background

2.1 Operator details

S & J Transport Ltd holds a standard national goods vehicles operator’s licence for 35 vehicles and 10 trailers. The licence was granted in 2005. The directors of the company when the company was called to a public inquiry by letter of 3 January 2020 were Stephen Michael Adams and his wife Jane Elizabeth Adams. On 1 April 2020 Stephen Michael Adams resigned as director. His sons David Stephen Adams and Brian Gary Adams were appointed as directors on the same date.

Stephen Michael Adams was the nominated transport manager on the licence from its grant in 2005. In September 2019 a second transport manager, Brian Gary Adams, was appointed. Stephen Michael Adams resigned as transport manager on 31 March 2020, leaving Brian Gary Adams as the sole transport manager.

2.2 Fatal collision and DVSA investigation

On 9 October 2017 one of the operator’s vehicles, BT16 TKX, driven by Robert Charles Bradbury, was involved in a fatal collision with a cyclist on the Pershore Road in Birmingham. The driver, when turning left, had failed to spot the cyclist immediately in front of his vehicle.

On 11 October, DVSA vehicle examiner Gary Ollis examined the vehicle. He found that the driver’s forward view through the windscreen was seriously impaired by a large table top on the dashboard on which there were a number of toys and a large satnav device. He noted that the driver defect book for 9 October 2017 had not recorded any visual obstruction. It had however recorded that the external left turn warning system (an audible “warning, vehicle turning” message) was not working. He issued an S-marked prohibition to the vehicle for the serious visual obstruction.

On 12 October Mr Ollis visited S & J Transport Ltd’s operating centre and spoke to director and transport manager Stephen Michael Adams. Mr Adams stated that he had previously told drivers not to place anything on the dashboard and had previously (around March 2017) issued a verbal warning to driver Robert Bradbury for using the table which seriously impaired the driver’s vision, after a regular six-week inspection had reported the issue.

3. Public inquiry

3.1 Initial call-up, 2018

On receiving Mr Ollis’s report in late 2017, I decided to call the operator to a public inquiry. A call-up letter was sent on 17 January 2018 with a date for an inquiry in February 2018. However, I was subsequently informed by the police that both operator and driver were being prosecuted for offences related to the collision. I was requested to delay any public inquiry until after the cases had been heard, which I did.

3.2 Court case

On 6 December 2019 S & J Transport Ltd was convicted of an offence of failing to discharge its duty under the Health and Safety at Work Act and fined £112,500 with £3,000 costs. Driver Robert Bradbury was sentenced to 21 months in prison for the offence of causing death by careless driving. The judge stated that “S & J were aware that several of their drivers were driving with these tables in place. In that knowledge the company failed over a significant period of time.”

3.3 Public inquiry

Informed of these convictions (though not at that time of the judge’s comments), I called the company and transport manager Stephen Michael Adams to a public inquiry to discuss their repute. The call-up letter was sent on 3 January 2020, and the public inquiry took place in Birmingham on 13 February.

Present at the inquiry were (then) directors Stephen Michael Adams and Jane Elizabeth Adams, along with the other transport manager Brian Adams (not called in his own right because he had only recently been appointed as transport manager). DVSA vehicle examiner Gary Ollis was also present. In the public gallery as an observer was PC Mark Crozier from the Serious Collisions Investigation Unit of the West Midlands Police.

Giving evidence, Stephen Michael Adams stated that driver Robert Bradbury’s practice had been to fit his table onto the vehicle’s dashboard on a Monday morning; he was then away all week with his vehicle and would return to the yard on a Friday and remove the table. The operator had therefore not been and could not have been aware that he was using it. After the fatal collision driver Bradbury had gone off sick but had later returned to work for the company for a few weeks before leaving of his own accord. He had not been disciplined, on the advice of the company’s solicitor.

I asked the operator about a safety inspection report dated 9 November 2019 concerning the same vehicle that had been involved in the fatal collision two years earlier, BT16 TKX. The report recorded “windscreen filthy outside swept area in line with front kerb mirror, unable to see mirror. Also, mirror filthy, sat nav on offside of screen obscuring view to front.” I asked why, after the fatal collision, drivers were apparently still obscuring their vision with satnav devices and failing to clear filthy windscreens and mirrors. Brian Adams stated that the driver, Stephen Bagulay, had received a warning. However, when I looked at the warning concerned, it merely asked the driver to sign to confirm that he would rectify the defects before taking the vehicle out onto the road. In the light of what had previously occurred, this seemed wholly inadequate to me.

I further noted, from my perusal of the records supplied by the operator, that drivers were clearly failing to record defects such as loose wheel nuts and broken lights on their daily defect reports, as these items were appearing frequently on the six week safety inspection reports. I also observed that the operator was failing to pursue quite serious instances of driving without a card, being all too ready to accept driver excuses that the tachograph had not been working on that particular day or that they were “not sure” what had happened. The operator’s lack of curiosity appeared to me to be a significant failing.

Stephen Michael Adams informed me that any regulatory action would mean loss of business by the company. Clearly, revocation would mean the complete loss of business and of employees’ jobs.

3.4 Inquiry adjourned

At this point I adjourned the inquiry in order to take a written decision. Very shortly afterwards my clerk received an email from PC Crozier, who had been observing the inquiry from the public gallery. PC Crozier stated that Stephen Michael Adams’s statement that he had not been aware that driver Robert Bradbury had fitted a large table to his dashboard, because the vehicle was away in the week and Mr Bradbury removed it at weekends, was not in accordance with evidence which had emerged at the trial to the effect that, some months prior to the fatal collision, the dashboard table had been removed from vehicle BT16 TKX before an MOT test and replaced immediately afterwards and that the operator must have been aware of this.

3.5 Inquiry reconvened

In the light of this information I decided to reconvene the inquiry. A date was originally set for 21 April 2020, but this had to be postponed as a result of the COVID-19 lockdown. The inquiry was eventually reconvened in Birmingham on 31 July 2020, by which time Stephen Michael Adams had resigned as both director and transport manager and his sons Brian Adams and David Adams appointed as directors (see paragraph 1 above). Present on 31 July 2020 were director and now sole transport manager Brian Adams, director David Adams, director Jane Elizabeth Adams and Stephen Michael Adams (retired). The company was represented by Christopher Hopkins, barrister.

Mr Hopkins straight away stated that the company accepted that it had misled me at the February inquiry: the company had been aware that driver Robert Bradbury had been driving with a dashboard table in place. It had instructed him to remove it but had known that he was still driving with it in place after the vehicle’s MOT test in May 2017. The company accepted that it had failed to put in place any sort of blanket ban on tables and had failed to enforce the removal of tables used by drivers.

Mr Hopkins made the following points in the operator’s favour:

• vehicle wheel nuts were now checked every two weeks in the workshop. All drivers now had tapping hammers;

• transport manager Brian Adams was in the yard at 0500 every Monday to check that drivers were doing their walkround checks correctly;

• driver discipline had been tightened up. Drivers who drove without their card now went straight to a final written warning: there had been a consequent reduction in missing mileage;

• maintenance standards were generally good, a fact which had been identified in VE Ollis’s original report;

• the company had benefited from the advice of Health and Safety specialist company Peninsular since the fatal collision.

Mr Hopkins stated that the company deeply regretted what had happened. It had pleaded guilty before the trial had started; it had co-operated with the police and DVSA investigations. Stephen Adams was no longer involved with the company, having retired on 31 March 2020 on grounds of ill-health.

Mr Hopkins invited me not to remove the company’s repute. It had had only one warning (in 2015) throughout the 15 year life of the licence. It employed 30 staff whose jobs would all be lost if the licence were revoked. A suspension would also have a highly detrimental effect on the company and employees’ jobs. If I were minded to take regulatory action, he suggested that curtailing the number of vehicles to the actual current fleet size, 28 vehicles, could be an appropriate outcome.

4. Consideration

It is clear to me from the evidence and the judge’s summing up that the company knew for many months that drivers were flouting the instruction to remove tables from the vehicles’ dashboards. The company was aware that the dashboard table was taken out of BT16 TKX in order for it to pass its MOT in May 2017 and that it was subsequently put back in place.

It is also clear to me that management of drivers was weak and ineffective across a whole range of issues. Driver Bradbury had been verbally warned about his table in March 2017; the operator had been aware when the vehicle was given an MOT in May 2017 that he was still using it; even after the fatal collision in October 2017 he was not subject to any further disciplinary measure.

Further, two years after the fatal collision a vehicle was found by the maintenance contractor in November 2019 to have a large satnav obscuring the driver’s vision and the windscreen and nearside mirror were in such a state as to render the mirror useless. The driver was merely invited by the operator to rectify the matter. Drivers committing very serious drivers’ hours infringements were producing risible excuses equivalent to “the dog ate my homework” which were simply being accepted by the operator. The impression I received was very much of a company which simply could not or would not manage its drivers.

5. Findings

After having considered the evidence I make the following findings:

• both the company and its servant Robert Bradbury have incurred convictions for serious offences (Section 26(1)(c )(i) and (ii) of the 1995 Act refers);

• the company has failed to fulfil its undertaking to ensure the lawful driving of vehicles (Section 26(1)(f) refers). It was aware that drivers were engaging in the highly dangerous practice of driving with large dashboard tables fitted, with objects on the tables obscuring vision still further. It took no effective action to stop this practice. It was therefore grossly negligent in this regard and this gross negligence was directly responsible for causing a fatal collision.

• the company and its director and transport manager Stephen Michael Adams attempted to mislead me at the February 2020 inquiry by claiming that they had not been aware that Robert Bradbury was using an illegal table. Had it not been for PC Crozier later drawing my attention to the fact that this contradicted the evidence at the trial I might have been none the wiser.

5.1 Repute

The company and its then transport manager Stephen Michael Adams knew for many months that their drivers were engaging in a dangerous practice and took no effective action to prevent this. They failed to eradicate the use of windscreen-obscuring satnavs even after the fatal collision. They attempted to conceal the truth from me at the public inquiry in February 2020 by stating that they had not been and could not have been aware of driver Bradbury’s table. This was simply false. Because of their gross negligence and their attempt to mislead me I cannot avoid the conclusion that their repute is lost (Section 27(1)(a) refers).

5.2 Balancing act

In reaching this decision, I carried out a balancing act. On the negative side were the findings above. On the positive side were the company’s co-operation with DVSA and the police (acknowledged by VE Ollis), the generally good MOT pass rate and below average prohibition rate, and the improvements listed by Mr Hopkins which have taken place since February 2020. There was also the fact that the company decided to make a clean breast of it at the July 2020 inquiry and admit that it had tried to mislead me in February. But the enormity of the company’s negligence and its consequences, its failure to tackle the problem effectively even after the fatal collision, and its dishonesty at the inquiry in February 2020 significantly outweigh the positive factors to the extent justifying a finding of loss of good repute.

5.3 “Priority Freight” and “Bryan Haulage” questions

In February 2020, more than two years after the fatal collision, I found a company which was still failing to discipline drivers for serious offences, and still failing to tackle windscreen obstruction issues. For that reason, the answer to the Priority Freight question of how likely it is that the company will comply in the future is “unlikely”. It had the opportunity to make a sea change in the way it managed drivers and failed to take it. A negative answer to the Priority Freight question tends to suggest a positive answer to the Bryan Haulage question: does the operator deserve to go out of business? Because the fatal collision was the result of sustained and conscious negligence by the company and its transport manager – not just an unlucky accident - I conclude that it does.

6. Decisions

6.1 Revocation of licence

The company has lost its good repute and the licence must therefore be revoked under Section 27(1)(a) of the 1995 Act. I am revoking it with effect from 0001 hours on 1 October 2020, to give the company time to wind down its business.

6.2 Disqualification of the company and its (then) directors

For the reasons outlined above, and having performed the same balancing act described therein, I conclude that the company and its directors during the period 1 January 2017- 1 April 20 (Stephen Michael Adam and Jane Elizabeth Adams) should be disqualified under Section 28 from holding a licence in the future. Although Jane Elizabeth Adams did not play a major part in either inquiry, she was present throughout in February 2020 and did not make any attempt to correct Stephen Michael Adams’s claim to have been unaware of driver Bradbury’s malpractices. She must bear equal responsibility with her fellow director for what went wrong.

In deciding upon the length of the disqualification, I have taken account of paragraph 100 of the STC’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry (which this is) but a period of between five and ten years where an operator has knowingly operated unsafe vehicles. The operator’s conduct falls firmly into this latter category, which is why I have decided upon a disqualification period of five years. I have fixed upon a period at the lower end of the aggravated range because the company did at least tell the truth at the July 2020 inquiry.

6.3 Disqualification – transport manager

Having concluded that Stephen Michael Adams’s good repute is lost I must also disqualify him under paragraph 16 of Schedule 3 to the 1995 Act from being a transport manager on any licence. Mr Adams has retired and is in any case unlikely to wish to act as a transport manager again. I make a disqualification order against him, as transport manager, with immediate effect and for an indefinite period of time.

Nicholas Denton

Traffic Commissioner

28 August 2020