Decision

Decision for Christopher Ivor Gardner & Patrick William Cuss T/A Universal Tool Hire & Supplies (OH1038933)

Published 27 August 2024

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 23 July 2024 at Bristol

2.1 Operator: Christopher Ivor Gardner & Patrick William Cuss T/A Universal Tool Hire & Supplies (OH1038933)

3. BACKGROUND

Christopher Ivor Gardner and Patrick William Cuss are the holders of a restricted goods vehicle operator’s licence authorising the use of one vehicle from a site at the West Wiltshire Trading Estate in Westbury, Wiltshire. It is a tool hire and supplies business.

DVSA Vehicle Examiner Gary Beck carried out a maintenance investigation on 1 March 2024. The outcome was unsatisfactory. Of particular concern was the condition of two vehicles inspected during the visit (one a 3.5 tonne van). Mr Beck found that there had been over a year between safety inspections that were due to be carried out at 10-weekly intervals, itself a lengthy period given that the vehicle is twelve years old. There was no worthwhile brake performance testing. Driver defect reporting seemed unsatisfactory. The MOT failure rate was 60% against a national average of 8.6%. There was, frankly, little to commend the operation. I decided to call it to public inquiry.

4. THE PUBLIC INQUIRY

Christopher Gardner and Darren Gardner attended the public inquiry. They were unrepresented. [I will use first names, not out of any disrespect but simply to differentiate easily]. I was told that Patrick Cuss was unable to attend through ill-health. The intention was for Darren to take over responsibility for the vehicle operations. Compliance documents had been uploaded to the case in advance and adequate access to financial resources was demonstrated. I checked that the operators had access to the case documents.

The inquiry was recorded and I document here only that which is relevant to my decision.

The partners had previously indicated a wish to cease operating heavy goods vehicles but that was a knee-jerk reaction. On reflection, they decided they did need to carry on.

I referred Darren to the Vehicle Examiner’s report. There had only been three inspections over a 15-month period. I was told that Chris Gardner had been undergoing treatment and had taken his eye off the ball. The responsibility should have been passed on back then, but it had not. Drivers were carrying out checks but not recording them very well. Darren had now undertaken his driver CPC and understood more what was responsible.

I asked about Mr Beck’s comment that a deflated tyre he had found had been in that condition for some time as it had exploded shortly after being re-inflated indicating that it had been used in a deflated condition. The operator did not accept that opinion. The lorry was only used sporadically, maybe 3-4 days without being used.

I noted that Mr Beck had found defects on the authorised vehicle which included inoperative windscreen washers, defective wipers and the flat tyre. Having inspected also the Transit, he found in total ten defects on two vehicles.

Darren told me that Mr Beck’s inspections had been carried out before the daily walk-round checks and the defects would have been identified then. I questioned whether they may have been present on the previous day’s inspection and considered, more likely than not, that at least some would have been.

I was told that there had not been any issues with MOTs. I reflected upon the test history which showed a 40% pass rate against a national average of 91% and that, in the previous five years, no vehicle had passed without defects. I was told that the defects might have happened on the day and they had relied upon their maintenance provider.

In the operator’s evidence was an inspection report from 4 March 2024 from John Satchell Services. That was the inspection after the prohibition had been issued at the fleet inspection. Defects found included that the windscreen washer pump was not working, broken marker lamp and many, many other defects that a driver should pick-up. I was told that too much reliance had been placed on the drivers.

Christopher told me that, going forward, they intended to be much more on the ball.

Without the 7.5 tonne vehicle, at least one of the drivers would have to go. They would run on a smaller scale and release the two drivers. I was puzzled as to why loss of a vehicle that was used only sporadically would mean two drivers losing their jobs. Suspension would mean reducing the drivers’ hourly wage for the period.

I noted that no tachograph compliance documents had been provided as requested. No downloads had been done of either driver cards or vehicle units. Driving licences had been checked yesterday.

In closing Darren told me that he had been in a limbo because he wanted to become the responsible person but my office had not responded to that proposal. There would be tachograph downloading. There would be brake testing.

5. FINDINGS OF FACT

It is abundantly clear that vehicles have not been kept fit and serviceable. That is apparent from the dreadful MOT history and from the awful state of the vehicles found at the fleet check. I am far more inclined to accept the expert opinion of the Vehicle Examiner that the deflated tyre (of a twin-fitment) had been deflated for some time and used in that condition leading to its subsequent catastrophic failure when re-inflated. Such an explosion is rare. Very rare. The washer defect was not a lack of water but a failed pump unit, again likely to have degraded over time and very unlikely to have failed between the vehicle leaving service the previous day and Mr Beck’s inspection that morning. The vehicles were in a truly sorry state.

I am lost on Darren’s comment that he was awaiting a response from my office before being able to take on responsibility for the transport operation. The statement shows a complete lack of understanding of the legislation and licensing regime.

I have no reason to doubt that a partner’s health issues played a part in vehicles being inspected three times in fifteen months instead of the six or seven which were committed to. But that is not an acceptable excuse. If the management capacity to manage a vehicle is not available, the vehicle must be removed from service. Prohibitions were issued as a result. A prohibition is not just an annoying piece of paper; it is a declaration from a qualified Vehicle Examiner that further use of the vehicle in that condition is a real and present risk to road users. I find without hesitation that Sections 26(1)(c)(ii), 26(1)(e) and 26(1)(f) are made out. I attach considerable weight.

No tachograph compliance documentation was provided. That is because it does not exist. No systems whatsoever were in place. That causes me to find that the operator is no longer fit to operate heavy goods vehicles. Section 26(1)(h) is made out in that regard.

6. BALANCING EXERCISE AND DETERMINATION

Paragraphs 16 – 19 set out the very considerable negatives. To those, I add the lateness in the day with which the operator took any action and the lack of any investment in legal or other specialist support. Looking for positives is not an easy task. Darren Gardner has taken over responsibility for the authorised vehicle and has passed his HGV driving test. That has given him some insight into drivers hours and the need for walk-round checks. That is really all I can find.

This is a small family tool-hire business. There are no established transport compliance systems in place. Transport is today’s focus because of the possibility of losing the licence. It seems to me, far more likely than not, that once the current crisis is over the management focus will move to the next challenge that faces the business and transport will fall from view. For that reason, I find I cannot trust this operator to be compliant in the future.

Having made a finding that I cannot trust the operator to be compliant, I turn to the impact of regulatory action. The operator gave conflicting evidence in that regard. I was told the vehicle was used only occasionally and yet the jobs of two drivers would be put at risk if it were not available. It is only a small 7.5 tonne vehicle. It is likely that most of the company’s business could be conducted using the 3.5 tonne van perhaps with a 4x4 and a trailer (although tachographs may still be needed). In any case, it is my judgement that the danger posed by this operator justified it being put out of business in the unlikely event that is the eventual outcome. Revocation is justified.

I turn to consider disqualification. No additional feature is necessary but there has to be a purpose to a disqualification order. Whilst the current individuals will have a mountain to climb to be granted a restricted licence, with a credible transport manager, it may be possible that they could be granted a standard licence. Such a licence might be required anyway given that delivery and collection is clearly a part of the operation, and that the operator does not use the tools or plant delivered themselves. But the benefit of a standard licence is that I have an extra person I can call to account who is qualified and whose employment relies upon that qualification that can be so easily lost.

7. DECISIONS

Pursuant to a finding of a serious breach of undertakings, prohibitions issued, use of vehicles in a dangerous condition and loss of fitness, the licence is revoked under Sections 26(1)(c)(iii), 26(1)(e), 26(1)(f) and 26(1)(h).

To allow for an orderly winding down, revocation will take effect from 23:59 hours, 29 August 2024.

Kevin Rooney
Traffic Commissioner

1 August 2024