Neutral Citation Number: [2013] UKUT 31 (AAC)

Appeal No.  T/2012/44

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 14 July 2012

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellant:

HIGHLAND CAR CRUSHERS Limited

 

 

 

 

Attendances:

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

 

 

Heard at: George House, 126 George Street, Edinburgh.

Date of hearing: 5 December 2012

Date of decision: 15 January 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

SUBJECT MATTER:-   Disqualification

 

 

CASES REFERRED TO:- Brian Edward Clark Appeal 74/2001

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the Scottish Traffic Area to revoke the goods vehicle operator’s licence held by the Appellant, to find that two directors of the Appellant company had lost their good repute, to find that the Transport Manager, James Sinclair Fraser had lost his repute and professional competence in his capacity as Transport Manager and to disqualify the Appellant company, and Messrs James Sinclair Fraser and Hunter R A Fraser from holding or obtaining an operator’s licence in any traffic area for a period of 5 years commencing on 1 September 2012.

2.           At a late stage the scope of the appeal was restricted to two issues.  First, was it appropriate and proportionate to disqualify Mr Hunter Fraser?  Second, if the answer to the first question was ‘yes’, was it appropriate and proportionate to disqualify him for as long as 5 years?  As far as possible the background to this decision will be confined to these two questions.

3.          The factual background to this appeal appears from the documents and the Traffic Commissioner’s decisions and is as follows:-

(i)                   The Appellant was granted a standard national goods vehicle operator’s licence on 22 September 2004. The licence originally authorised the use of 6 vehicles and 6 trailers but the authorisation was later increased to 9 vehicles and 9 trailers.  There were two operating centres, one at Poyntzfield Mains, Dingwall and the other at 3/5 Carsegate Road North, Inverness.

(ii)                 At all material times the directors of the company were Mr James Sinclair Fraser, (“Sinclair Fraser”) and his son Mr Hunter Ross Alan Fraser, (“Hunter Fraser”).  At all material times the Transport Manager was Sinclair Fraser, who had obtained the relevant qualification through ‘acquired rights’. 

(iii)                At a Public Inquiry on 5 June 2007 the Appellant received a warning in respect of its future maintenance standards following an adverse vehicle examiner’s report.

(iv)                On 23 July 2009 one of the Appellant’s vehicles, driven by Hunter Fraser, was examined at the Inverness Vehicle Testing Station.  An immediate prohibition was issued as a result of four defects.  One of these defects related to the braking system, while another related to a tyre, worn beyond the legal limit.  Since this should have been detected on the daily ‘walk-round’ check before the vehicle was used the prohibition was ‘S’ marked, to indicate a significant failure in maintenance.  When invited to comment about this prohibition Hunter Fraser attributed the tyre wear to a ‘flat spot’, which was not visible when the vehicle was checked.  Further examination of the vehicle showed that the skip, which it was carrying, was not properly secured.  As to this Hunter Fraser said: “I hold my hands up about the skip on the back of the lorry it should not of been used we have now rectified the problem with the skip ant it is now road legal”.

(v)                 On 28 September 2009 an ‘S’ marked prohibition was issued to a vehicle submitted for its annual MOT test.  The reason was that the service brake was not operating after a new brake actuator had been fitted and no brake test had taken place thereafter.

(vi)                On 8 December 2009 one of the Appellant company’s vehicles was stopped by the Police while carrying a load of timber logs.  The Police officers noted that the load appeared to have been badly loaded and/or badly secured with the result that it was in danger of falling from the lorry.  Had that happened their view, based on lengthy experience, was that the consequences would have been catastrophic.  The vehicle in question had earlier been involved in a head-on collision with another lorry and it was being moved to the operating centre at Poyntzfield.  It appeared that the load had shifted forwards as a result of the collision.  After the vehicle had been stopped officers were able to move some of the logs by hand.  It appeared to them that an attempt to secure the load with webbing straps had been ineffective.  A vehicle examiner attended the scene and issued an ‘S’ marked prohibition because the load was so insecure that it was likely to fall from the vehicle while the vehicle was in motion.  It was ‘S’ marked because the insecurity should have been apparent on a first use/daily walk round check.  Sinclair Fraser took advantage of the opportunity to give an explanation.  He said that the Police had given permission for the vehicle to be moved, that the impression of those running the Appellant company was that the vehicle was safe and that the driver had put on more straps and believed that the load was secure.

(vii)              Following a Public Inquiry on 27 July 2010 the Appellant’s licence was suspended for a period of 3 weeks. There were three main reasons why the Appellant was called to this Public Inquiry.  The first was a further adverse vehicle examiner’s report, the second was an application for an increased authorisation, (subsequently withdrawn) and the third was the ‘S’ marked prohibitions, which had been issued. An undertaking was given at this Public Inquiry that the Appellant’s drivers and directors would, within 2 months, attend a course in load security.  Training was arranged for 3 August 2010.

(viii)             It is unnecessary to go into the detail of Sinclair Fraser’s evidence at the Public Inquiry.  It is sufficient to say that in relation to the incident on 8 December 2009 he said this it would never happen again because he would be more vigilant and that it had been a terrifying experience for him.

(ix)                Hunter Fraser said that he worked full-time for the Appellant company.  His role was to see customers and instruct drivers.  He said that he was intending to go on a CPC course.  He added that he had not attended the scene of the accident in December 2009 but that he did attend the place where the vehicle was stopped.  He said that having seen the load he knew it was not right and that it ought not to have been on the road.  He added that if he had seen the load before the journey had started he would have insisted that it had to be taken off the trailer there and then.

(x)                 The driver of this vehicle also gave evidence.  He said that he had never had any training in moving round timber but that he knew that the load: “did not look bonnie”, by which he meant that everything did not appear to be where it should have been.

(xi)                The Traffic Commissioner gave a careful and detailed written decision dated 5 August 2010.  In assessing the evidence in relation to prohibitions and, in particular the three ‘S’ marked prohibitions the Traffic Commissioner said this:

“Particularly culpable in respect of one of these was the director Mr Hunter Fraser and I single him out for very severe criticism indeed for allowing an insecure skip to be carried by one of his vehicles.  That was inexcusable on his part and goes directly to whether I can trust him as an operator.  Such a casual attitude to a fundamental safety aspect as the securing of a skip cannot be overlooked.  I have seen a photograph of the tyre wear and I am not persuaded that a flat spot was the cause of him not seeing the tyre.  In any event as a director he should have been alive to the need to keep an on-going visual check on tyres particularly in the circumstances of landfill attrition which was narrated to me”.

A little later, having been very critical of the inadequate response to the events in December 2009, the Traffic Commissioner said this:

“The operator is expected to be the expert in respect of the safety of its own vehicles and the loads thereof.  I suspect that Mr Hunter Fraser lacks the maturity and experience to know that there cannot be any chances with safety and loadings.  There cannot be a casual attitude, every load has to be safe.  Chances cannot be taken”.

The Traffic Commissioner went on to explain that she had to consider whether to revoke the licence, in particular because she found the insecure load, the skip insecurity and the prohibitions “all too worrisome”.  She went on:

“I have decided that just because Mr Sinclair Fraser used the word ‘terrifying’ that there is sufficient insight here into the position the operator is in.  However I have to bring that home to Hunter Fraser, I have decided that I must suspend this licence for a period of 3 weeks with effect from 23.59 on 16 August 2010.  ….  Thus I am grounding the operator’s vehicles for 3 weeks to give the operator the opportunity to bring in full training as a matter of urgency and to bring home to Mr Hunter Fraser in particular that this is what happens if operating is not safe.  It will give him a whiff of what revocation feels like i.e. if this is not got right he loses much of the profitability of the business and he will not be able to operate goods vehicles in future”.

(xii)               Between July 2010 and September 2011, 7 of the Appellant’s vehicles were presented for MOT test.  Of these two passed, one passed after a Partial Re-test and 4 failed.  The initial pass rate was 28% against a national average of 72% and the final pass rate was 42% against a national average of 83%.

(xiii)             On 28 June 2011 a further ‘S’ marked prohibition was issued.  The reason given on this occasion was: “load was not secured in an appropriate manner, load fell from vehicle, falling load a danger to road users”.  An investigation of this incident by a vehicle examiner and a traffic examiner revealed that as one of the Appellant’s vehicles went round a roundabout on the A96 Inverness to Aberdeen road a container full of used vehicle batteries fell from the vehicle.  It appeared to the vehicle examiner that the containers of batteries had been placed on the floor of the vehicle and that bags containing electrical cables had been placed on top of the containers and then secured using ratchet straps.  The vehicle examiner concluded that during the journey the cables ‘settled’ with the result that the containers became insecure.  Other parts of the load, including a skip containing kitchen sinks, were secure.  The driver pulled into a lay-by shortly after the roundabout where he found that a second box of batteries had moved.  When he slackened a ratchet strap to secure it it fell from the vehicle.  Seven unused ratchet straps were found on the vehicle.  In the opinion of the vehicle examiner they should have been used to secure the containers of used batteries.   

(xiv)             The traffic examiner was told by the driver that the vehicle was carrying 2100 kg of batteries filled with acid.  Carrying used batteries meant that the load was subject to the Carriage of Dangerous Goods and ADR Regulations.   However the investigation of the incident showed that there had been non-compliance with all the requirements of these Regulations.  As a result of the incident a ‘contra-flow’ was set up for 30 minutes to enable firemen in protective suits and breathing apparatus to put batteries back into the box from which they had fallen so that they could be removed from the site.  A little later the road was closed for 20 minutes to enable the original lorry to be unloaded so that the hazardous material could be removed.  As a result there were substantial traffic jams during the rush hour. 

(xv)              On 29 June 2011 Hunter Fraser discussed the incident with the traffic examiner.  He initially claimed that he had been told when doing his ADR training that transporting used batteries was exempt.  However when the position was explained, and in particular the Special Provisions, which had to be complied with to secure exemption, he agreed that in view of the quantity carried the ADR Regulations did apply.  In addition Hunter Fraser was advised to notify the Traffic Commissioner, if he had not already done so, that he was disqualified from driving.

(xvi)             On 28 September 2011 a notified visit was carried out at the Carsegate Road North operating centre.  Sinclair Fraser was present but Hunter Fraser was not because he was working at a farm.  When the traffic examiner asked for the paperwork relating to the Working Time Directive it became apparent that no-one was aware that it applied to all the drivers.  It also became clear that Mrs Vicky Fraser, the wife of Hunter Fraser, carried out the analysis of the Working Time Directive paperwork and tachographs.  It emerged that at that time she had no knowledge of EU Drivers’ Hours Regulations but in October 2011 she had undergone training.  It also emerged that there was no system for recording driver infringements.  The traffic examiner was told that the only significant infringement related to a driver called Kevin Walker, who had been arrested on 3 August 2011, for ‘drink driving’ while he was on duty.  Driver Walker was subsequently sentenced to 4 months imprisonment and disqualified from driving for 6 years.  The traffic examiner recommended that one or other of the two directors should report the conviction to the Traffic Commissioner.

(xvii)            The traffic examiner was told that following the incident on 28 June 2011 the driver of that vehicle was no longer driving it but was working full-time in the scrap yard.  She was also told that all drivers had been given a training session in load security and that the Appellant would no longer transport car batteries.

(xviii)          Between 28 September 2011 and 3 November 2011 a maintenance investigation was carried out.  It was classed as ‘unsatisfactory’ for three reasons.  The first was the ‘S’ marked prohibition issued on 28 June 2011.  The second was the fact that rectification work was not recorded on driver defect reports and the third was that a change in maintenance provider had not been notified to the Traffic Commissioner.  In addition the vehicle examiner’s report revealed that in the previous five years the Appellant company had been issued with 26 prohibition notices of which 6 were ‘S’ marked, to indicate a significant failure of the maintenance system.  Sinclair Fraser responded to this report by promising that there would be appropriate changes to the Appellant company’s systems, including a requirement to record and ‘sign off’ rectification work on the driver’s defect note.

(xix)             On 17 October 2011 the traffic examiner spoke to Sinclair Fraser about driver Walker.  Sinclair Fraser said that Hunter Fraser had responsibility for hiring drivers and that the company policy was to obtain both parts of the driving licence held by any new driver that the Appellant decided to employ.  However he admitted that in the case of driver Walker only the photographic section of the licence had been seen.  The traffic examiner asked why driver Walker had been permitted to continue to commit offences against the drivers’ hours and tachograph regulations.  Sinclair Fraser replied that Hunter Fraser had given him a verbal warning.

(xx)               In October 2011 a report was received from the traffic examiner who had analysed the Appellant company’s tachograph records.  This revealed that over the previous 5 years there had been 5 drivers’ hours prohibitions, 1 prohibition for a defective tachograph and 8 dangerous goods prohibitions.  In addition it was apparent that the systems for checking tachograph charts were inadequate and the majority of drivers were not monitored for compliance with the Working Time Directive.  Analysis of the tachograph charts produced revealed that 84 offences were disclosed on the 83 charts provided by one driver, Kevin Walker.  The traffic examiner was not confident that Sinclair Fraser had up to date knowledge of Drivers’ Hours Regulations and the Working time Directive.  She concluded that there was no system in place to ensure compliance with the Regulations or the Directive, though the effect of training had been to reduce the number of infringements.  She revealed that in addition to the conviction in 2011 driver Walker had a previous conviction for ‘drink driving’ in 2009, when he was disqualified for 18 months.  Finally the traffic examiner pointed out that the Appellant company had arranged for various forms of training to be carried out.

(xxi)             On 12 December 2011 the traffic examiner reported that she had received confirmation that drivers and staff of the Appellant company, (though not Sinclair Fraser), had undertaken driver CPC training.

(xxii)            On 24 February 2012 the Appellant company was called to a Public Inquiry to be held on 23 March 2012.  The evidence to be considered at the Public Inquiry has been summarised above.  Sinclair Fraser was also called to the Public Inquiry in his capacity as Transport Manager and he was warned that his good repute and professional competence as Transport Manager were in issue.  The Appellant company and both the directors were warned that disqualification would be considered in the event that the licence was revoked.

(xxiii)           On 14 March 2012 an application was made to adjourn the Public Inquiry on the ground that Sinclair Fraser was unfit to attend.  The application was supported by medical evidence.  The application was granted and the Public Inquiry was rescheduled for 7 June 2012.

(xxiv)          On the same day Mr William J Smith was approached by the Solicitors acting for the Appellant company.  He was requested to audit all the systems and procedures then used by the Appellant company and to recommend changes and any additional procedures which should be implemented.  His report contained a wide range of recommendations.

(xxv)            On 16 April 2012, Hunter Fraser and Mrs Victoria Fraser were awarded an OCR Level 3 Certificate of Professional Competence for Transport Managers (Road Haulage).

(xxvi)          On 17 May 2012 the Office of the Traffic Commissioner (“OTC”) warned the Solicitors acting for the Appellant that the Traffic Commissioner was aware of the advice that Hunter Fraser should notify his disqualification and that a check with the DVLA had revealed that on 30 September 2009 he was disqualified from a period of 3 years.

(xxvii)         The Public Inquiry took place before the Traffic Commissioner on 7 June 2012.  The Appellant was represented by Mr McLaughlin and Sinclair Fraser, Hunter Fraser and Victoria Fraser were all present.

(xxviii)        The evidence of the vehicle examiner and the traffic examiner has been summarised above.  In cross-examination the vehicle examiner agreed that there had been an improvement in maintenance related defects and in the MOT pass rate.  The traffic examiner agreed in cross examination that on a second visit Victoria Fraser had more knowledge about driver’s hours than she did on the first visit.  The traffic examiner also agreed that the recommendations made by Mr Smith looked good on paper but she added that they had to be shown to work in practice.

(xxix)           Sinclair Fraser was the first witness on behalf of the Appellant.  He accepted that there were significant questions as to whether he had the requisite knowledge to fulfil his role as Transport Manager.  He said that the vehicle, which shed its load on 28 June 2011, was loaded in the yard on his instructions but that he was not present when this was done.  He accepted that the driver of the vehicle was not ADR trained but added that he believed that the load was ADR exempt because it was not a full load.  He accepted that he knew that driver Walker was not taking the correct breaks.  He said that he had spoken to him about it and that he was on his last warning.  He agreed that but for the traffic examiner’s visit the changes in the system for checking drivers’ hours, tachographs and the like would probably not have taken place.  He accepted that in view of the various problems with loads it would be difficult for the Traffic Commissioner to have confidence in him as Transport Manager.  A little later he agreed that he was not really fit to be Transport Manager and that he had not kept up to date with the legislation.

(xxx)            Hunter Fraser then gave evidence.  He immediately accepted that on 30 September 2009 he as disqualified for 3 years for a ‘drink driving’ offence and that, in addition, he was ordered to perform 80 hours of community service.  He accepted that he had not reported the conviction to the Traffic Commissioner, despite being advised to do so.  He said that he was kind of shocked and a bit embarrassed because he probably should have reported it over a year beforehand.  He then agreed that the condition was clear and that it was a conviction which should have been reported.  He denied trying to hide it.  He agreed that he had disclosed a previous ‘drink/drive’ conviction on an application relating to the licence, hence the disqualification for three years.  He also accepted that he had received two fixed penalty notices for using a mobile phone while driving and agreed that he had not disclosed either of them.

(xxxi)           Mr McLaughlin then referred Hunter Fraser to one of the comments made by the Traffic Commissioner in her decision at the end of the previous Public Inquiry.  The passage in question is the third quotation at paragraph 3(xi) above.  Hunter Fraser accepted that what was expected of him had been “starkly put in front of him”.  He set out the steps taken to fulfil the undertaking in relation to training.  He said in relation to tachographs: “well we weren’t too … We were checking over them but we weren’t educated strongly enough to thoroughly go over them”.  He said that they found little errors but nothing which they thought was major except that as soon as they got charts from driver Walker they noticed that they “were terrible”.  He went on to accept that there was no system for recording findings or warnings.  In relation to the state of the vehicles and the poor MOT test pass rate he accepted that he placed too much reliance on what his father was doing.  In relation to the batteries he said that he thought that the load was exempt because they were in boxes.  He said that after the visit from the traffic examiner in October 2011 he went through the systems with his father adding that is wife, Victoria Fraser was getting more involved too.

(xxxii)         Victoria Fraser gave evidence with a view to satisfying the Traffic Commissioner that she was a suitable candidate to replace Sinclair Fraser as Transport Manager.  She accepted that looking back to the systems in place at the time of the visits in September and October 2011 that they were seriously lacking.

(xxxiii)        The Traffic Commissioner gave a written decision dated 14 July 2012.  She set out in detail the evidence which we have summarised above.  She referred to a number of passages from her earlier decision, three of which we have quoted at paragraph 3(xi).  She went on to comment on Mr Smith’s report and his evidence saying that it was obvious that he had not found that all was in order when he made his investigation.  She concluded that:

“As late as 20 March 2012 this was not an operation with proper arrangements for securing the licence undertakings and that (was) notwithstanding two pervious Public Inquiries, VOSA Examiner visits and advising, attendance at training course and CPC passes”.

(xxxiv)        The Traffic Commissioner went on to point out that the Appellant engages in a business “which requires impeccable loading”.  She referred to the consequences of the incident on 28 June 2011 and to the maintenance deficiencies revealed by the MOT test pass rate and the number of prohibitions.  She said that much had been made of the amount of training that had been undertaken.  She went on:

“Having now seen this operator for the second time at a significant regulatory Public Inquiry, I am in no doubt that it has to be the attitude and inherent business culture values of Messrs Sinclair and Hunter Fraser.  They simply do not focus their attention on the health and safety and operator requirements of the business.  Mr Hunter Fraser has a very low commitment to road safety.  I can say that with confidence as not only was he convicted in 2003 of being drunk in charge of a vehicle but he was involved in a significant drink driving incident which involved him driving away, with his wife as a passenger from a party late at night and crashing on a public road from Dingwall to the Black Isle”.

(xxxv)         The Traffic Commissioner concluded that the second of these offences was not reported to her because Hunter Fraser feared that it would result in the revocation of the operator’s licence.  She also referred to the mobile phone offences and continued:

“So here is a man who generally is lacking in judgment and ability.  I am also conscious that it is he who has been running the HCC business in a managerial/supervisory role and was supervising such drivers as Mr Hay and Mr Walker.  His evidence was that it was he who was undertaking the transport manager duties.

This operator employed driver Kevin Walker whom we now know to have a drink driving history such that after he was caught driving one of this operator’s vehicles under the influence of alcohol, the disposal of the Court was a sentence of imprisonment as well as disqualification”.

(xxxvi)        The Traffic Commissioner made further adverse findings in relation to the way in which Sinclair and Hunter Fraser had handled driver Walker.  She pointed out that neither had seen his paper driving licence, which would have revealed the previous conviction for a ‘drink/drive’ offence, nor had they made any independent check of his record.  She referred to the fact that neither had suspended payment of his wages pending receipt of his outstanding tachograph charts, or required his personal attendance to receive his wages after he had handed over the outstanding charts.  She made the point that drivers who do not hand over charts and/or fail to provide paper copies of their driving licences tend not to be compliant, honest, sensible drivers.  She added that the most cursory glance at driver Walker’s charts would have revealed that he was not taking proper breaks.  She concluded that it was Hunter Fraser who had allowed this situation to develop.

(xxxvii)      The Traffic Commissioner’s overall assessment of Hunter Fraser was as follows:

“In relation to Mr Hunter Fraser, I was critical of him in 2010.  He has chosen to neglect my warnings to him and my indications to him that his way of going about his life as an operator and as a person who has duties to the whole community in respect to road safety have not been heeded.  He has a major attitude and competence problem.  I criticise his failure to notify his convictions timeously.  As stated above I have no doubt in particular that he did not tell me of the drink drive disqualification as he did not want me to know”.

(xxxviii)      It is against this background that the Traffic Commissioner concluded that the Appellant could not be trusted to operate compliantly in the future and that it was appropriate and proportionate to put the Appellant out of business.  The Appellant’s operator’s licence was revoked on a variety of grounds.  The Traffic Commissioner went on to conclude that both Sinclair and Hunter Fraser had lost their good repute.  She also made adverse findings against Sinclair Fraser in his capacity as Transport Manager.

(xxxix)        Having revoked the licence the Traffic Commissioner went on to consider whether to exercise her power to disqualify the Appellant company and its directors.  She concluded that the fact that the Appellant was at a third Public Inquiry facing the catalogue of matters referred to in the decision was not acceptable.  Her view was that: “something was wrong with the operating culture”.  Having disqualified the Appellant and Sinclair Fraser for periods of 5 years each she turned to consider Hunter Fraser saying this:

“In respect of Mr Hunter Fraser, there is little to redeem Mr Hunter Fraser.  There is a very large gap between what he says he will do and reality.  I have to protect the public from that gap in his personality or priorities, whatever it is that causes him to be such a bad performer when it comes to goods vehicles operating and safe driving.  I will disqualify him also for 5 years but I say to him that ideally I would prefer if he set his face against any future involvement with lorries.  I do not think he has the attitude of mind, the capability, the temperament to be in a regulated safety conscious environment such as this one.  He should look to do something else for a living and not rely on family tradition of operating lorries”.

(xl)                On 9 August 2012 the Appellant filed a Notice of Appeal.  This put all the conclusions reached by the Traffic Commissioner in issue.  Shortly before the hearing of the appeal the Tribunal was informed that the argument on the appeal would be confined to two grounds.  First, that it was not necessary, in all the circumstances, to disqualify Hunter Fraser.  Second, if the first point failed, that it was not appropriate or proportionate to disqualify him for as long as 5 years.

4.           At the hearing of the appeal Hunter Fraser was represented by Mr McLaughlin.  In advance of the hearing he provided us with a skeleton argument for which we are grateful.  In addition he provided us with a small bundle of earlier decisions for which we are also grateful.

5.           In support of the first ground of appeal Mr McLaughlin relied on the decision in the appeal of Brian Edward Clark appeal 74/2001 to show that disqualification is not mandatory following revocation of an operator’s licence although it does not require proof of any additional feature.  In Clark the Tribunal went on to say this:

“Of course disqualification is not always ordered in addition to revocation.  However, there are cases in which the seriousness of the conduct in such that a traffic commissioner may properly consider that both revocation and disqualification are necessary for the purposes of enforcing the legislation”.

6.           In support of the submission that it was not necessary to disqualify Hunter Fraser Mr McLaughlin put forward a number of detailed points.  He submitted that there was no evidence of specific criticism of Hunter Fraser in relation to the first Public Inquiry.  He accepted that there was severe criticism of him in the decision, which followed the second Public Inquiry but submitted that it was not clear why he was singled out.  He referred to the undertaking given at the second Public Inquiry, which had been carried out.  He accepted that there were serious criticisms of Hunter Fraser in the decision following the third Public Inquiry but submitted that these had to be balanced against the improvements implemented by Hunter Fraser, with the assistance of his wife and Mr Smith and the courses he had attended.  Next he submitted that the involvement of driver Walker with the business was short-lived so that the Traffic Commissioner was unduly influenced by the findings she made in relation to this part of the Public Inquiry.  He submitted that the problems with Defect Reports had been rectified.  In relation to the incident on 28 June 2011 Mr McLaughlin submitted that Hunter Fraser was not directly involved, the driver had had appropriate training and was provided with sufficient equipment, which he had failed to use and that Hunter Fraser had taken steps to ensure the loads covered by the ADR Regulations would no longer be covered.  When all these matters are taken together Mr McLaughlin submitted that Hunter Fraser had shown that he was open to advice and willing to make improvements so that disqualification was not necessary.

7.           While some of these points are not contentious others require more detailed consideration.  In relation to the severe criticism of Hunter Fraser in the decision following the second Public Inquiry we cannot accept that it was not clear why Hunter Fraser had been singled out.  In our view it is only necessary to re-read the quotations at paragraph 3(xi) to see exactly why Hunter Fraser was severely criticised.  In relation to the third Public Inquiry we are satisfied that the criticisms of Hunter Fraser were well-founded on the evidence and so serious that they comfortably outweighed the favourable factors referred to by Mr McLaughlin. 

8.           In our view the length of time over which driver Walker was employed by the Appellant is beside the point.  What is all too clear is that the way in which he was employed, without anyone seeing the paper copy of his licence, the ineffective approach to his failure to hand over tachograph charts and the failure to deal effectively with the obvious infringements which his charts disclosed were all symptomatic of the woeful failure to manage the Appellant company in a way which complied with the regulatory regime.  In our view far from being unduly influenced by the matters relating to driver Walker the Traffic Commissioner came to the correct conclusions all of which are supported by the evidence. 

9.           In our view the position in relation to defect reports is instructive.  At the maintenance inspection which took place in May 2009 driver defect reporting appeared to be in “regular and proper use”.  In other words the defect reports recorded the fact that the defect had been rectified.  By the time of the maintenance investigation which took place between September and November 2011 this was no longer the case.  The fact that this lapse was subsequently corrected has to be considered against this background.  It seems to us that when the full picture is considered it reveals a disturbing situation namely that the moment those in charge take their eye off the ball, in order to deal with some other problem, something which was working correctly then goes wrong.  Far from being an indication that disqualification was not necessary it seems to us that it supports the view that Hunter Fraser is simply not cut out to manage a company, which holds an operator’s licence in a way which enables the company to comply with all the obligations of the regulatory regime.  It is simply not good enough to say, in effect: “I can enable the company to comply with some of the obligations all of the time and all of the obligations some of the time but I cannot enable it to comply with all of the obligations all of the time”.  Those responsible for operator’s licences, whether as owner operators, partners or directors of companies are expected to comply with all of the obligations of the regulatory regime all of the time.  We recognise that, for various reasons, that expectation will not always be met.  An operator’s reaction when something goes wrong is likely to be instructive.  Those who make a timely report to the Traffic Commissioner, when necessary, and take effective steps to put matters right and to learn any wider lessons from what has gone wrong are likely to be in a strong position to satisfy the Traffic Commissioner that they can properly continue to operate.  Those who bury their heads in the sand, break the undertaking to report to the Traffic Commissioner and wait until others tell them what to do rather than use their initiative are likely to be called to a Public Inquiry at which their right to continue to operate will be in question.

10.        While Hunter Fraser may not have had direct involvement in the incident on 28 June 2011 he cannot escape from his responsibility for setting the standards which employees were expected to meet and for leading by example.  It is not enough to send employees on courses.  It is necessary for those in charge to ensure that what has been taught on the course in put into practice on a daily basis.  It seems to us that there are two reasons why this did not happen on 28 June 2011.  The first is that the containers filled with batteries were not separately secured, even though there were spare ratchet straps with which this could have been done.  The second is that it should have been clear that the load was not exempt from the ADR regulations.  Since the driver was not ADR trained it is not correct to say that he had had the appropriate training nor did he have the required safety equipment.

11.        We are satisfied that the Traffic Commissioner was correct in concluding that Hunter Fraser ought to be disqualified.  In our view disqualification was necessary for the purposes of enforcing the legislation.  Taking an overall view of the evidence and weighing the favourable and unfavourable factors we have come to the conclusion that Hunter Fraser is simply not competent to manage a company or any other entity, which holds an operator’s licence.  He appears to be unable to put what he has been taught on courses into practice so as to ensure that the day to day operation of heavy goods vehicles is compliant with the regulatory regime in all respects.  He also appears to be unable to get a sufficient ‘grip’ on such an operation to ensure compliance and to set an example that enables employees to ensure compliant operation.  Putting it bluntly we agree with the Traffic Commissioner that he has no place in this industry.

12.        In relation to the length of the disqualification Mr McLaughlin submitted that the Traffic Commissioner gave no reasons for concluding that 5 years was an appropriate period.  In our view this is not quite right because the Traffic Commissioner was clearly tempted to disqualify Hunter Fraser for an indefinite period, instead she decided on 5 years probably on the ground that it would not be right to deprive Hunter Fraser of any hope of a return to the industry at some stage.

13.        Mr McLaughlin took us through a number of decisions in which the Tribunal has considered appeals concerning the length of disqualifications.  All such cases depend on their own particular facts.  While the facts in some cases may reveal similarities it is a rare event to find two cases with exactly the same facts.  In our view it is only on those rare occasions on which the facts are exactly the same that another decision is likely to be of any assistance on the question of the appropriate length of a disqualification.  In our view it will not help us to reach a decision nor will it help others to understand this decision if we go through these decisions and explain why they must be distinguished.

14.        We have to say that this was a bad case where, on three occasions, the public was put at risk because vehicles had unsafe loads.  In addition the public were further put at risk by the employment of a driver, without sight of the paper copy of his licence, or knowledge of his previous conviction, who then went on to drive one of the Appellant’s vehicles while under the influence of alcohol.  We have to consider the balance between protecting the public on the one hand and the interests of Hunter Fraser on the other.  Given his woeful failure to manage the Appellant company in a way which enabled it to comply with the regulatory regime, his inability to use his own initiative when things went wrong and his failure, on occasions, to accept advice, we are satisfied that the protection of the public must take priority over Hunter Fraser’s interests for a substantial period.  In our view 5 years achieves the right balance on the facts of this particular case.

15.        For these reasons the appeal is dismissed with immediate effect.

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

15 January 2013