Neutral Citation Number: [2009] UKUT 266 (AAC)

Appeal No.  2009/501

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

Joan Aitken TRAFFIC COMMISSIONER for the

SCOTTISH TRAFFIC AREA Dated 7 August 2009

Before:

Judge Frances Burton

Leslie Milliken

Stuart James

Appellant:

FENTON TRANSPORT LIMITED

Attendances:

For the Appellant:  Mr John McLaughlin of Culley & McAlpine, Solicitors

Heard at:                       Eagle Building, Glasgow

Date of hearing:           27 October 2009

Date of decision:         27 November 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and the suspension ordered by the Traffic Commissioner shall take effect at 23.59 hours on Sunday 13 December 2009.

REASONS FOR DECISION

1.           This was an appeal against the Decision of the Traffic Commissioner for the Scottish Traffic Area dated 7 August 2009 when she suspended the operator company’s standard national licence for 18 days from 23.59 hours on 15 September 2009 for breach of undertakings in relation to drivers hours and took action against the vocational licences of a number of drivers.

2.           The factual background appears from the documents, the transcript of the public inquiry and the written decision of the Traffic Commissioner and is as follows.

(i)               The operator company used to hold a standard international operator licence from 1994 but now operates on a standard national licence authorising 10 vehicles and 11 trailers.  The fleet currently comprises 9 x 44 tonne vehicles and 10 trailers foing general haulage work. Following adverse reports from VOSA the operator and drivers were called to a public inquiry held at Edinburgh on 1 June 2009. Mr James N. Fenton, the sole Director and Transport Manager, was present. Drivers Gordon Hughes, William Osler, Sidney Geddes, Neil Lyon and Graeme Lyall were present. Two other drivers (C. Ogg and J. Robinson) were not and were postponed to another occasion.

(ii)              The Vehicle Examiner’s evidence was that the operator had PMI contracts with Western Commercials and Volvo dealerships at 6 weekly intervals with remaining maintenance in house and FTA 6 monthly inspections of 2 vehicles. A pre-announced maintenance investigation was held on 16 May 2008 where 2 articulated units and 2 trailers were inspected. An “S” endorsed immediate prohibition was issued to one of the trailers for fractured brake discs and another advisory note was issued. The VE’s concern was that the prohibited trailer had had a safety inspection 3 days earlier and the local company which had performed this inspection had disclosed no such defect on the service sheet. The sheet was produced, showing that other defects had been detected and rectified. Otherwise driver defect reporting, inspection frequencies and forward planning were in order, and the annual test failures were 10 out of 36. Prohibitions were for a range of items (12 immediate, 9 delayed, 11 variations) and included brakes and speed limiters. It was suggested in cross examination of the VE that the trailer brakes found defective could, in severe operating conditions, have heated and cooled down rapidly causing fractures.

(iii)            The Traffic Examiner’s evidence  was that an investigation had been prompted by allegations that drivers were exceeding their hours  and “pulling fuses” to disguise this, and had disclosed numerous offences. The operator was required by letter of 21 April 2008 to produce tachograph charts, drivers time sheets and fuel receipts and statements for the period 4 February 2008 to 17 March 2008. When these were duly produced delivery notes, copy driver licences and FTA analysis, amongst other documents, were also requested. 282 charts and 39 digital records were examined revealing apparently 8 false records, 47 incidents of exceeding 4½ hours driving, 21 insufficient daily rests, 14 incidents of exceeding fortnightly driving time, 10 exceeding 10 hours daily driving and 7 failing to keep records. The TE had interviewed the operator and the drivers. Mr Fenton himself was interviewed on 4 November 2008. He had failed to complete the centre field properly on most of his own charts or to record duty time and offences had been found for his drivers. He said they rarely did a timed delivery and there was no pressure but the FTA reports disclosed infringements and the TEs thought that he did little to check charts or address FTA reported infringements.

(iv)            Mr Fenton gave evidence in which he accepted the TEs’ evidence as fair and accurate in relation to himself. He had 2 speeding convictions (on the M1 on 29 June 2006 and the M74 in his car on 2 March 2008) for which he had obtained 3 points each. He said that when the VE was coming to do the maintenance investigation he chose 2 vehicles and 2 trailers and sent the trailers for independent inspection, 1 to A.M. Howie and 1 to A&J Nelson, and these were then parked up awaiting the VE, who found the fractured discs mentioned in paragraph (ii) above on A.M. Howie’s trailer whereupon Mr Fenton had telephoned the head fitter as he could not believe the fractured brake discs had been missed as there had been no problems with the A&J Nelson trailer. He described his maintenance arrangements with the Mercedes agent John R. Weir who took all the vehicles. All the trailers were done in house by himself and 2 part-time time-served mechanics. He had since disposed of most of the vehicles which had had prohibitions and replaced some trailers. The oldest vehicle was 5 years old though this was not obvious as they carried personalised number plates. He said the Mercedes maintenance contractors now wanted the vehicles 2 clear working days prior to annual test so that a 100% annual test pass rate could be achieved.

(v)             Mr Fenton said that before the TE investigation he had collected charts but did not check them against fuel receipts or delivery notes as the FTA undertook analysis 4 times a year and provided reports. He had not then given drivers written warnings but had only spoken to them. He had not therefore picked up the problems noted by the TEs. Afterwards he had made changes, was now “on top of” the Working Time Directive and drivers were all aware that the rules had changed. He used Tayside Training to look at charts against fuel receipts, drivers were being made aware of discrepancies and he was moving away from the FTA with a Mr Alexander Smith taking over transferring digital data. He said that types of work had changed so that it was possible for drivers to stop when their time was up as it was agricultural work with no real deadlines although there were still some infringements due to miscalculation of the 4½ hours. In summary he considered he was a fair boss expecting a fair hour’s work for an hour’s pay. He did not give a starting time as not all drivers started at the same time daily, according to breaks. He disagreed with some drivers’ evidence about him, e.g. Mr Geddes, who said he was a bully because Mr Geddes was slow, learning the job and not up to it, but Mr Fenton had “given him a chance”. He had not put any pressure on anyone to make a false record and was unaware of any such false detail.

(vi)            Each of the drivers present had given evidence. It appeared that Mr S. Geddes was not really on top of the rules despite having had LGV entitlement for 15 years and had relied on John Robertson to keep him on the right track (as he had been driving for many years) but Mr Robertson had in fact not done so. Mr Geddes accepted that he regularly “got lost” and that this caused Mr Fenton to “blow up”. Mr Neil Lyon denied driving without a chart but accepted miscalculating his daily rest. However where the TEs saw false records on his part he put any such down to his ineptitude in using the charts, not closing the machine properly or forgetting correct use of the mode switch. Mr Neil Lyon accepted that he had created a false record but could not explain other discrepancies due to the passage of time, but he had worked part time for Mr Fenton and had no training, a situation he contrasted with his present full time work for a much more rigorous employer. Mr Hughes had had a previous warning from the Traffic Commissioner for taking insufficient daily rest in 2004 after which he had bought a time clock which had helped him. the TEs had found 4½ hours, daily and rolling fortnight break infringements but otherwise had concluded he had a reasonable knowledge of drivers’ hours despite not getting training but only asking questions in order to understand the system. He had not been able to explain most of his infringements but said that he now understood having been to the training arranged by Mr Fenton and that all would now be in order if the TEs returned.

(vii)           Mr William Osler’s infringements were explained by him as putting himself under pressure to get home as he had a medical condition which prevented him from sleeping in his vehicle cab. Infringements were found in the case of 6 other drivers, including the 2 not present whom the Traffic Commissioner had indicated she would see at another time.

(viii)         In closing submissions Mr Fenton said that he had obtained no benefit from the infringements, which were all drivers’ errors due to ignorance rather than deliberate interference. He accepted that he had not provided training but had considered all the drivers were professionals. He had put no pressure on them to falsify where this had occurred. In future the training and analysis put in place would ensure there was no repetition of infringements. There had been no instances of missing mileage and he had responded fully and promptly to the TEs’ requirements. In her written decision the Traffic Commissioner gave credit to Mr Fenton for this and for making formal arrangements for Mr Osler to take his vehicle home due to his medical condition by designating the address as an additional operating centre, but deplored his not taking sufficient notice of FTA reports and not doing more checking.  However she gave him credit for reacting to the call to public inquiry by putting training and analysis in place, and doing so within a fortnight. She conceded that Mr Fenton had been grossly let down by A.M. Howie in relation to the trailer inspection but was optimistic about future arrangements due to the involvement of Mr Alexander Smith. She nevertheless took the action against the licence referred to in paragraph 1 above. She suspended the drivers’ professional entitlements, including Mr Fenton’s; for drivers Geddes, Lyon, Lyall and Hughes the suspensions were for periods of between 2 and 8 weeks from the same date and time as the operator companies’ suspension, and gave a formal warning to Mr William Osler.

3.           At the hearing of the appeal the Appellant company was represented by Mr John McLaughlin of Culley & McAlpine, Solicitors, who referred us to his grounds of appeal. He submitted that there had undoubtedly been various problems with Mr Fenton’s company but although Mr Fenton had been in haulage since 1982 he had not realised what was happening until March 2008 when the tachograph investigation had begun. Since then he had made many and rapid improvements and changes in his systems. He appreciated that some action would have to be taken by the Traffic Commissioner for the breaches of s.26(1) of the Goods Vehicle (Licensing of Operators) Act 1995 as it was a fact that the systems for honouring Mr Fenton’s undertakings on drivers’ hours had needed upgrading but that curtailment would be preferable to suspension as it enabled the business to keep running. If suspension was preferred then he submitted that 18 days was excessive as 2 weeks should be sufficient. He also took exception to the weight that the Traffic Commissioner had placed on some drivers’ evidence to the effect that their treatment by Mr Fenton was oppressive as he was not “a bully” or “irrascible”. He completed his submissions by requesting that there should be 2 weeks’ notice of suspension if that were upheld.

4.           We were of the view that suspension was the appropriate sanction in the present case and that 18 days was not inappropriate by way of length since it will still enable Mr Fenton to keep the business running and is not, in the Tribunal’s view, plainly wrong. The Tribunal is further of the view that, despite all the progress he has made, Mr Fenton would be well advised to continue to get and keep his house in order, since should there be any repetition of the problems which led to the present action against the licence, a suspension for a mere 18 days would be unlikely to be the next regulatory action to be taken.

5.           The appeal is dismissed and the suspension ordered by the Traffic Commissioner will take effect on Sunday 13 December 2009 at 23.59 hours.

Frances Burton

[ ] November 2009