[2024] UKUT 47 (AAC)

The accident on 19^th July 2021 was very serious. He spent about six weeks in hospital and was off work for about eight months.

At the time Mr. King only sub-contracted for a major bulk company and it was that company which assigned work to Mr. Day after the accident.

Mr. King had left all his gear, including his driver’s card, in the lorry which he usually drove. He had no knowledge that Mr. Day had been using his card. Mr. Day was paid a flat rate of £750 per week whether he slept out or whether he got home each night. Mr. King did not benefit from Mr. Day’s use of the card.

He did not put pressure on Mr. Day to use two cards or scream at him down the phone.

He fully accepted that the systems he had in place at the time were inadequate. He now operated only his own lorry, so what happened with Mr. Day would never happen again, and had new software which would make it easy to spot if a driver’s card was being used when it should not have been.

Mr. Day admitted to him about a month after the DVSA visits that he had been using Mr. King’s card. Mr. King was very upset that Mr. Day had let him down and had to dismiss him. This was about June 2022.

There was no excuse for his failure to co-operate with the DVSA inquiries and he was ashamed of his behaviour. He thought he was being asked for information he had already provided; he was panicking; and he believed he did not need to submit the information because the licence was in the process of being surrendered. "I just stupidly ignored it and hoped it would sort itself out.” Partly this was because he knew Mr. Day had been using his card and it was likely the DVSA would discover it.

The Company was incorporated as a plant hire and transport company to enable Mr. King and Ms. Wallace to obtain a bank loan to finance the purchase of a digger. They also wished to obtain a mortgage to enable themselves to buy a bigger house and were advised by their accountant that their chances of obtaining a mortgage would be better if Mr. King could produce pay slips as a company employee rather than taking a director’s salary and dividends. That was the only reason he resigned as a director and Ms. Wallace was added.

Mr. King was reappointed as a director on the advice of his solicitor at the time he attended the interview with the DVSA on 12^th November 2021.

He did not declare his own business in what he described as “my” application for the Company licence because of his fear that to do so would derail everything because of his “silly mistake in not checking if Jason Day had been using” his card. Ms. Groom had not explicitly told him that double-carding had been detected, but he “had a fair idea what was coming”.

While Mr. King was away from work following the motor bike accident the business was run by Ms. Wallace.

Mr. Day received phone calls from Mr. King about the business both while Mr. King was in hospital and after he came out.

He said in his interview that Mr. King gave him the digicard but in fact Ms. Wallace gave it to him. She would have done so on Mr. King’s orders. He was still running the business from hospital.

He was aware how serious the injuries were because he was present at the accident. At the stage when Mr. King was taken to hospital in the air ambulance he was in no fit state to run the business because he was doped up on very strong medication.

Mr. Day was supposed to be off the week of the accident but Mr. King’s lorry was loaded ready for delivery and Mr. Day was asked to take that load. He thought he was asked by Mr. King, whom he described as on his phone within an hour of arriving at the hospital.

Ms. Wallace may have given him the card at her house. He did not think it was in the cab of Mr. King’s vehicle.

Mr. King solved the problem of having two vehicles and one driver by employing another driver, Graham Newton.

Mr. Day stopped working for Mr. King because he had had enough of driving. He gave a week’s notice and began his new employment, having worked the notice period, on the following Monday, 21^st June 2021.

He set the Company up in March 2021 to obtain finance to buy a high value excavator. The application for the Company’s licence was made by Ms. Wallace because the DVSA investigation was going on and he “knew there was at least one point that was going to arise”. He removed himself as a director and put Ms. Wallace on because he did not want it jeopardising the new company. They also wanted bank statements for the mortgage.

The bank statements were not the only reason for his resignation, as he had said in his statement.

One of the reasons why he was not named as transport manager of the Company in the application was (as we understand the evidence) again to avoid jeopardising the new company.

It was Ms. Wallace who completed the application, not him, but he helped.

For three or four months following the accident Mr. King was not involved with the compliance side. He did not get anyone in to run it.

He spoke to Mr. Day during the week following the accident and had contact with him thereafter, including speaking to him on the phone from hospital.

Mr. King did a missing mileage report in about December 2020 and saw a pattern of missing mileage on the Thursday so that Mr. Day could have an early finish on Friday. He gave Mr. Day a written warning.

It was when the DVSA wanted some tachograph raw data that Mr. Day admitted that he had used Mr. King’s card. Mr. King was not happy. He thought that was a Tuesday. He sacked Mr. Day on the Friday. It was about the 18^th, 19^th or 20^th of June. He just told Mr. Day over the phone.

Mr. King said he had a fair idea what was coming because he had the missing mileage. The reports he had run off at that stage did not show mileage on his driver’s card. The only infringements he raised with Mr. Day related to the missing mileage, not exceeding daily rest or daily driving hours.

At the time of the accident, Mr. King’s digicard was in his lorry. He had been going to work the next day (Monday) and usually left his card there rather than keeping it in his wallet because he had on a few occasions gone to work leaving his wallet at home.

He had spoken to both Mr. Day and Ms. Wallace within the day or a day or two of the accident and could not say who he had spoken to first. He was on morphine.

He thought it was Ms. Wallace who told Mr. Day to take the load in his lorry. The keys would have been in the washer bottle or Ms. Wallace would have had them. He did not tell Mr. Day to use his digicard. The business kind of ran itself because the work was subcontracted. It was just a question of making sure the driver turned up on time and did the work.

At the time of the accident Mr. King had independent savings which he could draw on if he needed. He employed a second driver in about October but from July to October he could afford to keep the lorry he drove off the road. He did not want anyone else driving it because it was his “pride and joy”. Then he found his injuries were more serious than he had originally thought, so he could not drive, and the business had secured a new contact, so he asked Mr. Newton if he wanted to come back. Mr. Newton drove the second lorry while Mr. Day drove Mr. King’s lorry.

Before the accident he had generated some infringement reports based on missing mileage by Mr. Day. In December 2020 he did missing mileage reports for the whole year and that led to giving Mr. Day a written warning. The infringements were not substantial.

The Company was effectively a joint venture between Mr. King and Ms. Wallace and Mr. King accepted that not putting his name on the application was dishonest. He understood that it was serious. As to future compliance, he was the only driver and infringements had become really minor and tachograph analysis had improved.

During the relevant period he had not been doing working time reports as he had told Ms. Groom. If he had done so, the reports would have shown up the use of his card.

She was aware when she made the application for the Company’s licence that Mr. King was under investigation by the DVSA and that was one of the reasons why she left him off the application form. That was also why Mr. King was not named as transport manager. She did not say that in the initial statement because she panicked.

At the material time she was working full time as a teaching assistant. She did not deal with compliance and maintenance matters. She attended a Zoom new operator’s seminar after the licence had been granted.

The accident happened while Covid restrictions were in place, so she was unable to go to see Mr. King in hospital. She communicated with him by phone. The nurses had to take the phone to him.

Ms. Wallace already knew that Mr. King’s lorry was loaded for delivery on the day following the accident, so she asked Mr. Day to take it. She gave Mr. Day the keys, which Mr. King kept in the car, but not the digicard, which Mr. King always kept in the lorry.

She helped in the sole trader business with general administrative duties but did not run the report for tachograph analysis or do anything of a similar nature. She could not explain the drivers’ hours rules.

Mr. King helped her with the Company’s licence application. She was aware at the time of the DVSA investigation. She accepted that she did not know about the operational aspects of the business of holding an operator’s licence.

Mr. King told her in advance of dismissing Mr. Day that he was going to do so and would just ring him.

She knew that Mr. King had not attended interviews with Ms. Groom. They had a conversation about it and thought that because he had surrendered his sole trader’s licence he did not have to go. She did not know how serious it was.

She could not remember when they found out about Mr. Day’s use of Mr. King’s digicard. She was unable to explain, if they did not know about it, what was so serious that Mr. King would not be able to get a new licence in the Company’s name.

The TC should find as a fact that neither Mr. King nor Ms. Wallace gave Mr. King’s driver’s card to Mr. Day and Mr. King had no knowledge that Mr. Day was using his card.

Mr. King’s licence had been in existence since 2013 and there had been nothing adverse other than a couple of prohibitions which would not warrant his being called to a public inquiry and nothing since the DVSA investigation. The real issue was the data from the downloads and Mr. King accepted he was not drilling down as he ought to have done.

The test was whether the TC could trust Mr. King. Mr. King had been honest, although very late in the day, and in the light of his overall record he could be trusted going forward. The TC should consider Priory Freight Limited and Williams 2009/225 and Bryan Haulage Limited (No. 2) 217/2002.

It was accepted that the case was in the severe category because of the attempt to conceal Mr. King’s involvement with the Company’s licence. It was, however, one single failing, although a severe one, and although revocation should be considered it should be discarded and Mr. King should be allowed to continue to operate with one vehicle and one trailer under the Company licence. That would itself be a significant indefinite curtailment which would materially affect the transport operation.

Ms. Bell did not seek to dissuade the TC from revocation of Mr. King’s own licence given the background that Mr. King had applied to surrender it in any event. “If … you decide that it’s appropriate to make an order for loss of repute for that licence, so be it.” It would still be possible to find that repute was satisfied in connection with the Company’s licence.

In reality Ms. Wallace did not fully understand her responsibilities as director of a transport operation and it would be possible for the Company to continue its business without her as a director but continuing to play a supportive role in the background.

Mr. King himself was principally guilty of stupidity, “doing an impression of an ostrich.” The shock of having to attend a public inquiry, facing the TC and admitting what he had done was sufficient to allow him his repute back. He was willing to undertake that a compliance audit should be conducted in whatever time the TC thought appropriate. Mr. Ridgway the external transport manager would remain in place keeping watch on Mr. King’s activities and Mr. King could, if the TC wished, resign as internal transport manager.

(at the prompting of the TC) the circumstances of the obtaining of the Company licence were capable of raising the question of disqualification, but disqualification would achieve nothing as far as the TC’s regulatory role was concerned and revocation coupled with disqualification would cause Mr. King to lose his business. Given his acceptance of his failings, his apology and his overall compliance, that would not be appropriate.