INQUIRY UNDER THE FATAL ACCIDENTS AND SUDDEN DEATHS INQUIRY (SCOTLAND) ACT 1976 INTO THE DEATH OF DOUGLAS BRIAN GORDON
SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY
[2016] FAI 14
B684/15
DETERMINATION
BY
SHERIFF COLIN WILLIAM PETTIGREW
UNDER THE FATAL ACCIDENTS AND SUDDEN DEATHS INQUIRY (SCOTLAND) ACT 1976
into the death of
DOUGLAS BRIAN GORDON
Paisley, 2016
The Sheriff, having heard and considered all of the evidence adduced and the parties’ submissions, DETERMINES:
1. In terms of Section 6(1)(a) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 that:
(i) Douglas Brian Gordon, born 24 May 1956 and who resided in Glasgow died at the Southern General Hospital, Govan Road, Glasgow on 2 July 2014 at 13.15 hrs. His life was pronounced formally extinct at the hospital at that time.
(ii) The accident resulting in Mr Gordon’s death occurred around 11:30am on 2 July 2014 in the eastbound carriageway on Sanderling Road, Paisley, approximately 36 metres west of the roundabout junction with White Cart Road, Paisley.
2. In terms of Section 6(1)(b) of the Act that:
(i) the cause of Mr Gordon’s death was
1(a) Chest Injury due to
1(b) Road Traffic Accident (minibus driver); and
(ii) The cause of the accident resulting in Mr Gordon’s death was his negotiation of the roundabout in the course of his employment whilst driving the Ford Transit van registration number SJ13 JYU at excessive speed, his loss of control of the Ford Transit van resulting in it crossing into the path of a large oncoming white coloured MAN TGX26:440 Articulated LGV registration number T40 STS operated by Saints Transport Limited and being driven by their employee Denis Gallacher, and colliding with same.
The reason or reasons why Mr Gordon drove at excessive speed and lost control of the Ford Transit Van cannot be established.
3. In terms of Section 6(1)(c) of the Act the death of Mr Douglas Brian Gordon and the accident resulting in his death might have been avoided:
(i) if he had not driven the Ford Transit van through the roundabout at the junction with White Cart Road, Paisley at excessive speed and lost control of the vehicle;
(ii) if, whilst driving the Ford Transit van in a westerly direction, he had not entered the eastbound carriageway of Sanderling Road, Paisley as he exited the roundabout whereby the Ford Transit van collided with the LGV being driven in the opposite direction by Mr Denis Gallacher;
(iii) if, the Drivers and Vehicle Licensing Agency (DVLA) when assessing the Application by Mr Douglas Brian Gordon for a vocational (Group 2) licence (Crown Production No. 15) accompanied by the completed and signed D4 Medical Examination Report dated 22 November 2013 (Crown Production No. 16) had contacted his General Practitioner to obtain sight of Mr Gordon’s GP Records relative to his anti-hypertensive treatment and blood pressure readings, authority for the release of which medical information relevant to his fitness to drive to the Secretary of State’s medical advisor having been given by Mr Gordon in signing Section 12 - Consent and Declaration - of the D4 Medical Examination Report.
4. In terms of Section 6(1)(d) of the Act it is not established that a defect in any system of work contributed to the accident resulting in Mr Gordon’s death.
5. In terms of Section 6(1)(e) of the Act that the following facts are relevant to the circumstances of Mr Gordon’s death:-
(i) Airlink Management Limited did not at the time of interviewing Mr Gordon for the position of the driver seek references or any specific medical information from interviewees, other than to ask the interviewee a general question relating to whether or not he had any medical issues
(ii) Nevertheless it was reasonable for Airlink Management Limited to employ Mr Gordon as a driver. Approximately six months before his employment commenced, Mr Gordon had undergone a D4 Medical Examination and had then been issued in December 2013 by the DVLA with a vocational (Group 2) driving licence. This entitled him to drive Group 2 vehicles until December 2018. At interview Mr Gordon produced a copy of his Certificated Professional Competence form GTG confirming he had undergone thirty five hours of CPC earlier in 2014.
(iii) There was no reason why Airlink Management Limited should not have relied upon the issue of a five year vocational licence in December 2013 by the DVLA and on the Certificate of Professional Competence documentation as proof of Mr Gordon’s fitness to drive and competence for the driving job he was employed to do.
(iv) Appropriate training was provided to Mr Gordon by Airlink Management Limited.
(v) There were no pre-collision defects in the Ford Transit van (minibus) or the luggage trailer which it was towing that could have led to a loss of control of the vehicle or trailer or increased the severity of the collision. The mechanical condition of the vehicle and trailer were not contributing factors in the collision.
(vi) There were no pre-collision defects in the white MAN TGX26:440 LGV tractor unit or the SD semi-trailer attached thereto that could have led to a loss of control of the vehicle or the trailer or increased the severity of the collision. The mechanical condition of the vehicle or the trailer was not a contributing factor in the collision.
(vii) The DVLA’s “At a Glance” guide to the current medical standards of fitness to drive for medical practitioners is for use as guidance only. Whilst it provides some idea of the anticipated outcome of the medical inquiry the guide provides that the specific features of each case will be considered before an individual licencing decision is reached.
(viii) It is the duty of the licence applicant to notify DVLA of any medical condition which may affect safe driving. On occasions, however, there are circumstances in which the licence holder cannot, or will not do so. In such circumstances the General Medical Council has issued clear guidelines to the medical profession.
(ix) In the section entitled “Cardiovascular Disorder” under “Hypertension” in the 2013 edition of the DVLA’s At a Glance guide to the current medical standards of fitness to drive for medical practitioners, in force November 2013, dealing with entitlement to the Group 2 licence, it provides that a person is disqualified “from driving if resting BP consistently 180mm Hg systolic or more and/or 100mm Hg diastolic or more”.
(x) In November, 2013 the DVLA’s operational instructions re section 4G blood pressure of the D4 medical examination report provided that if a single blood pressure reading taken on the day of the examination was below the threshold of 180/100 the DVLA would proceed to grant the application for a vocational (Group 2) driving licence.
(xi) On 11 March 2016 the DVLA published its latest guidance “Assessing fitness to drive” a guide for medical professionals.” In the section dealing with hypertension the DVLA guidance now states in relation to Group 2 licence holders (bus and lorry) that they must not drive and must notify the DVLA if resting BP is consistently: 180mm Hg or higher systolic and/or 100mm Hg or more diastolic.
(xii) The current DVLA’s operational instructions re section 4g blood pressure of the current version of the D4 Medical Examination Report require the best blood pressure reading taken on the day of the D4 medical examination to be recorded. This single reading is then assessed against the threshold of 180/100. If found to be above the application for a vocational (Group 2) licence is refused.
(xiii) The DVLA’s At a Glance guide to current medical standards of fitness to drive for medical practitioners in use in November 2013 and the guidance currently in use (as from 11 March, 2016) was and is not uniform in its approach to the assessment to blood pressure when compared with the DVLA’s operational instructions in relation to assessing the high blood pressure readings in the D4 Medical Examination Report. There is a lack of clarity in the DVLA’s position.
(xiv) No definition of the meaning of the word “consistently” is given by the DVLA in their At a Glance guide. It is capable of different interpretations by medical professionals leading to the potential for the giving of differing advice on the same facts and circumstances.
(xv) In their booklet INF4D entitled “Medical Examination Report for a Group 2 (Lorry or Bus) Licence D4”, which is for applicants and medical professionals alike, the DVLA adopt the word “persistently” when providing that an applicant is likely to be refused a Group 2 licence if he/she cannot meet the recommended medical guidelines for inter alia hypertension where the blood pressure is “persistently” 180mm Hg systolic or more and/or 100mm Hg diastolic or more. That word was capable of different interpretations from the meaning of the words “resting consistently” in the DVLA’s At a Glance guide in force in November 2013 and is also capable of different interpretations from the meaning of the words “resting BP is consistently” in the latest DVLA guidance “Assessing fitness to drive: a guide for medical professionals”.
(xvi) Notwithstanding that Mr Gordon was correctly noted in question number 2 in section 4G blood pressure of the D4 medical examination report dated 22 November 2013 as being on anti-hypertensive treatment, the three blood pressure readings with dates requested were not recorded by Dr Lesley Anne Somerville the registered medical practitioner who prepared said report as they were not available to her, she having no access to Mr Gordon’s medical notes. Dr Somerville recorded the second blood pressure reading she took on the day of the examination, after the lapse of about 5/10 minutes which blood pressure reading was below the threshold of 180mm Hg systolic and/or 100mm Hg diastolic.
(xvii) On the basis of the medical information contained in the D4 medical examination Report completed by Dr Somerville on 22 November 2013 Mr Douglas Brian Gordon met the standards of the DVLA’s operating instructions for the implementation of section 4G blood pressure part of that Report on that date leading to the approval of his application for and the issuing of his vocational (Group 2) licence in December, 2013. The DVLA’s operating instructions provided that if information in the D4 medical report disclosed on the day of the examination a blood pressure reading for the licence applicant below the threshold of 180mm Hg systolic and/or 100mm Hg diastolic, his blood pressure was considered to be “under control” at that point in time and the DVLA would proceed to grant the application for a vocational (Group 2) licence irrespective of whether or not the D4 medical examination report contained any other blood pressure readings above the threshold and/or did not provide the three previous blood pressure readings requested in the event of the licence applicant being on anti-hypertensive treatment.
(xviii) It has not been proved on the balance of probabilities that Mr Gordon did not meet the DVLA standards for fitness to drive at the date of the accident on 2 July, 2014. His last blood pressure reading for which there is a record namely that taken on 1 May 2014 by his general practitioner was recorded as 160/90, below the DVLA threshold.
(xix) The D4 Medical Examination Report can be completed by a medical practitioner licensed to practice in the UK or in the EU who has no prior knowledge of the licence applicant and no access to the licence applicant’s medical records, in particular his/her general practitioner records. In the absence of the licence applicant’s medical records, in particular his/her general practitioner records, the DVLA’s approach to the D4 Medical Examination Report relies upon the licence applicant’s knowledge, understanding and honesty in relation to declaring his/her medical history to the examining medical practitioner.
(xx) On the advice of the Secretary Of State for Transport’s Honorary Medical Advisory Panel on driving and disorders of the cardiovascular system, the DVLA have updated the form of the D4 Medical Examination Report, medical assessment since November 2013. In relation to section 4g blood pressure the report requests the licensed medical practitioner, if the licence applicant’s blood pressure is 180/100mm Hg systolic or more and/or 100mm Hg diastolic or more to take a further two readings at least 5 minutes apart and record the best of the three readings in the box provided. Box 1 now therefore asks the medical practitioner to record today’s best blood pressure reading (my emphasis). Notwithstanding that alteration in the wording of section 4g of the current version of the D4 medical examination report from the wording of Section 4 of the report completed by Dr Somerville in respect of Mr Gordon on 22 November 2013 the other parts of section 4g of the current version of the report are identical. If the licence applicant is on anti-hypertensive treatment the registered medical practitioner continues to be asked to provide three blood pressure readings with dates if available.
(xxi) On the advice of the Secretary of State for Transport’s Honorary Medical Advisory Panel on Neurology, the DVLA have expanded and redesigned question 7 in section 5 General of the D4 Medical Examination Report since November, 2013. Although specific reference continues to be made to obstructive sleep apnoea syndrome or any other medical condition causing excessive sleepiness, the Report now seeks information on the diagnosis, treatment and control of ALL sleep conditions (which should include obstructive sleep apnoea although it is not specifically mentioned).
In view of findings (xvi), (xix) and (xx) the Sheriff respectfully recommends that consideration be given by the Secretary of State for Transport’s Honorary Medical Advisory Panel on driving and disorders of the cardiovascular system and by the DVLA to instituting a review of the wording of the DVLA’s latest guidance “Assessing fitness to drive: a guide for medical professionals”, their booklet INF4D entitled “Medical Examination Report” for a Group 2 (lorry or bus) licence D4” and of section 4g blood pressure of the D4 Medical Examination Report to assist doctors and other health professionals when advising their patients, to endeavour to achieve uniformity in the provision of such advice by doctors and other health professionals.
In view of findings (xvi), (xix) and (xx) the Sheriff recommends that, when a licence applicant answers affirmatively question 2 in section 4g blood pressure of the D4 Medical Examination Report confirming he is on anti-hypertensive treatment, when none of the 3 previous blood pressure readings is provided or when any of the 3 previous blood pressure readings is above the threshold of 180mm Hg systolic and/or 100mm Hg diastolic consideration be given by the DVLA, in consultation with the Secretary of State for Transport’s Honorary Medical Advisory Panel on Cardiovascular disease to instituting a procedure whereby, in such circumstances, prior to the approval of any licence application, the DVLA is required to contact the licence applicant’s general practitioner, in accordance with the Consent and Declaration signed by the licence applicant, to obtain further information relative to the licence applicant’s blood pressure history.
In view of finding (xxi) the Sheriff recommends that consideration be given by the DVLA, in consultation with The Secretary of State for Transport’s Honorary Medical Advisory Panel on Neurology, to amending question 7 in section 5 General of the D4 medical report to include a specific reference to obstructive sleep apnoea.
Matters for consideration:-
(1) In view of finding (xix) as, to a large extent, the DVLA’s current approach to the D4 Medical Examination Report is reliant upon the licence applicant’s knowledge, understanding and honesty in relation to declaring his/her medical history to the examining medical practitioner, the Secretary of State for Transport should instigate a consultation on how best to ensure the completeness and accuracy of the information available to the DVLA in making fitness to drive licensing decisions and whether or not legislative change is required.
(2) Those involved in the system of assessing licence applicants’ fitness to drive should give consideration to the institution of procedures whereby, following the obtaining of the licence applicant’s consent, the registered medical practitioner performing the D4 medical assessment can obtain access to the licence applicant’s general practitioner records and any consequent legislative change necessary to give effect thereto.
Sheriff
NOTE
Introduction
1. This Fatal Accident Inquiry was held in terms of Section 1(1)(a)(i) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 into the circumstances of the death of Douglas Brian Gordon who died on 2 July 2014 as a consequence of injuries sustained by him in a road traffic accident which occurred on an unclassified road on the periphery of Glasgow Airport, namely, Sanderling Road, Paisley, approximately 36 metres west of the roundabout junction with White Cart Road, Paisley.
Application to hold the Inquiry and Preliminary Hearings
2. An Application was made by the Procurator Fiscal to hold this Inquiry. I considered the Application and appointed this Inquiry to be held on 8 February 2016 when the hearing of evidence commenced.
3. There were three preliminary hearings on 25 September and 11 December 2015 and 12 January 2016. It was initially proposed that the family of Mr Douglas Brian Gordon be represented at the Inquiry. In the event their application for legal aid was unsuccessful and they were not separately represented at the Inquiry. All three preliminary hearings were conducted by myself. At the first the Crown, through the Procurator Fiscal Depute, Ms Arias, intimated that the Inquiry may last 10 days although it was hoped it would be of shorter duration. At the second preliminary hearing the Crown informed me that following further inquiries it was felt that “fitness to drive” issues and the involvement of the DVLA would require to be explored. I was told it was then likely that all 10 days which had been reserved in the Court Programme for the hearing of evidence would be required. The possibility of additional dates was canvased with parties’ representatives.
4. At the second preliminary hearing I enquired of the Crown if intimation of the Application had been made upon Mr Douglas Brian Gordon’s general practitioner and the registered medical practitioner (Dr Lesley Anne Somerville) who had carried out the D4 Medical Examination and Assessment of him on 22 November 2013. Upon being informed that no intimation had yet been made upon Dr Somerville I ordered that to be done.
5. At the final preliminary hearing on 12 January 2016 the Crown confirmed that no criminal proceedings were to be taken against Mr Denis Gallacher of Saints Transport Limited, the driver of the articulated LGV with tractor unit MAN TGX26:440 registration number T40 STS with which the Ford Transit van of Airlink Management Limited, registration number SH13 JYU, being driven by Mr Douglas Brian Gordon, had collided.
Length of the inquiry
6. This Inquiry lasted some thirteen days. When it became apparent that the Operating Instructions of the DVLA vis a vis assessment of the content of the D4 Medical Assessment as regards blood pressure (Crown Productions 47 and 48) were relevant to the circumstances of Mr Gordon’s death, efforts were made to obtain evidence from a senior administrator and arrangements made for her evidence to be taken by video link. I arranged for parties to lodge written submissions. These are reprinted as Appendices number 11 to 16. An oral Hearing on Submissions was subsequently held.
I wish to assure all parties that I have carefully considered their written and oral submissions even where there may be no significant reference to them in any part of this Determination.
Representation
7. The Crown were represented by Ms Arias, Procurator Fiscal Depute. Mr Meehan, Advocate, appeared for Airlink Management Limited, Ms. O’Donnell, Solicitor appeared for Saints Transport Limited and their driver, Mr Denis Gallacher. Drs David Taylor and Lesley Anne Somerville were represented by Mr Reid, Advocate. Mr O’Reilly, Solicitor appeared for the Greater Glasgow Health Board. Mr Olson, Advocate appeared for the Driver and Vehicle Licence Authority (DVLA).
8. Witnesses
1. Ms Mary Kelly, Mr Gordon’s ex-partner.
2. Mr Richard Clifford, TOA Taxi Driver, eye witness to the accident.
3. Mr Malcom Newlands, eye witness to the accident
4. Mr Denis Gallacher, driver of MAN TGX 226:440 LEV (operated by Saints Transport Limited).
5. PC Scott Simpson, collision investigator.
6. Ms Rhianna Carr, Operations Manager, Airline Management Limited (Mr Gordon’s employer).
7. Mr Brian Rice, driver, Airlink Management Limited.
8. Dr Daniel Taylor, Mr Gordon’s General Practitioner.
9. Dr Lesley-Anne Somerville, Registered Medical Practitioner, who carried out the D4 Medical Examination of Mr Gordon on 22 November 2013 in relation to his application for a Group 2 Driving Licence.
10. Dr Jesse Dawson, Consultant Physician, with responsibility for Glasgow Blood Pressure Clinic on Wednesdays from August 2011 to the end of 2014.
11. Dr Stephen Banham, Retired Consultant, former Head of Sleep Clinic, Gartnavel General Hospital.
12. Mr Duncan Macfarlane, Physiologist, Sleep Clinic, Gartnavel General Hospital.
13. Dr Christopher M. Carlin, Consultant Physician in Respiratory Medicine, Head of Sleep Clinic, Gartnavel General Hospital, Glasgow since July 2012.
14. Dr Wyn Parry, Senior Medical Advisor to the DVLA, Swansea.
15. Ms. Carol A. Tamplin, Medical Executive officer, DVLA, Drivers’ Medical Division, Swansea.
Mr Douglas Brian Gordon and the loss suffered by his family as a result of his death
9. At the commencement of the Inquiry all present stood to mark respect for the life of Mr Douglas Brian Gordon with a minute’s silence. That was entirely appropriate.
10. It is clearly established from the evidence of Ms. Mary Kelly, his ex-partner, that Douglas Brian Gordon was a warm-hearted individual who had cared for his late wife when she fell ill. He was said to be a very good father to his children. Mr Gordon actively looked for work following the death of his late wife.
11. Mr Gordon’s sudden and unexpected death has left a void in each of the lives of his family and friends which will continue. All the evidence led at this Inquiry from witnesses who worked for his employers including Ms Rhianna Carr, the then Operations Manager of Airlink Management Limited, MacDowall Street, Paisley was that Mr Gordon, notwithstanding his short period of employment with the company, was a lovely man, very friendly with a nice manner. He had been well liked and was popular with his colleagues, someone who left an impression with them. The Operations Manager agreed that Mr Gordon possessed the ideal attributes of an employee especially in the area of customer service.
12. Mr Gordon’s death has had a profound effect upon his family and friends. Their love and respect for him was demonstrated by their attendance throughout the Inquiry. I expressed my condolences to them at the end of the Inquiry, as did the Procurator Fiscal Depute and the lawyers for each of the represented parties. I repeat my expressions of sympathy to them.
A Synopsis of the Evidence Led at the Inquiry
The events of the morning of 2 July 2014
13. Much of the evidence as to what occurred on 2 July 2014 was not in dispute. Mr Gordon was working in the course of his employment as a minibus driver with Airlink Management Limited ferrying passengers and their luggage between the Park and Fly car park at MacDowell Street, Paisley operated by Airlink Management Limited and Glasgow Airport.
14. I heard evidence from Mr Richard Clifford, a TOA taxi driver who testified that at about 11:25am on 2 July 2014, as he was proceeding onto the roundabout at the junction with White Cart Road, Paisley intending to turn right in a westerly direction he observed the Ford Transit van with trailer being driven by Mr Gordon. Mr Clifford described the Ford Transit van as “flying along the road” in the inside lane. He said that, despite having the right of way, he was forced to “stop abruptly” in his taxi to avoid the Ford Transit van colliding with the taxi and to permit the Ford Transit van to “carry on in front of him” in a westerly direction. Mr Crawford said the trailer at the rear of the Ford Transit van was “unstable” due to the speed being employed. He said “it was bouncing all over the place at the back.” Mr Crawford informed the Inquiry that Mr Gordon had looked at him as he proceeded through the roundabout. He described Mr Gordon as “sitting up at the wheel in a normal manner.” He testified that Mr Gordon, in the Ford Transit van, changed lane whilst on the roundabout. As he, Mr Clifford, followed the Ford Transit van around the roundabout, he observed the Ford Transit van being driven by Mr Gordon “drift into the oncoming carriageway on Sanderling Road.”
I found Mr Clifford to be a credible and reliable witness.
15. The Procurator Fiscal informed me that she intended to call as a witness Mr Denis Gallacher, an HGV driver employed by Saints Transport Limited who had been driving the white coloured MAN TGX26:440 Articulated LGV registration number T40 STS at the material time on the morning of 2 July 2014. I was aware from information imparted at the final preliminary hearing that the Crown was not taking criminal proceedings against Mr Gallacher arising out of the circumstances of the death of Mr Gordon. It was not, therefore, necessary for me to give Mr Gallacher any warning as regards self-incrimination and none was given.
16. Mr Gallacher’s evidence was relatively unchallenged. I am in no doubt that he was a credible witness trying to tell the truth as he remembered it.
Mr Gallacher informed the Inquiry that when he first saw the Ford Transit van being driven by Mr Gordon “it had just come off the roundabout” onto Sanderling Road. Mr Gallacher described seeing Mr Gordon’s trunk “lying across the two passenger seats” of the van with his face down such that he, i.e., Mr Gallacher “could only see the back of his head.” Mr Gallacher testified that Mr Gordon had his right hand on the steering wheel of the van at the 12 o’clock position. He stated that from a point 6 to 7 metres short of his articulated vehicle Mr Gallacher heard “a loud rev from the engine (of the Ford Transit van) whereupon it started to come over to my side of the road.” Mr Gallacher said that shortly before the impact of the two vehicles, on the eastbound carriageway of Sanderling Road, Mr Gordon had looked up and in Mr Gallacher’s opinion “tried to steer the Ford Transit van to the left with his right hand on the wheel.”
17. Despite Mr Gallacher applying the brakes on the articulated vehicle prior to impact, the front of the Ford Transit van collided with the offside front of the articulated vehicle. Mr Gallacher telephoned his employers and asked them to contact the emergency services. He then reversed his articulated vehicle from its resultant position following impact, so that the emergency services could gain access. Mr Gallacher went to Mr Gordon’s aid and told him the emergency services were on their way. At this time Mr Gordon was breathing. His speech was garbled. Mr Gallacher was joined by Mr Clifford, the taxi driver, once he had parked his taxi out of the way and by two other workmen close by.
18. Mr Gallacher’s evidence about Mr Gordon’s attempts to steer left at the last minute is not evidence I can rely upon. There is no physical evidence to support that part of his testimony. PC Simpson testified and I accept that the principal direction of force is indicative of the Ford Transit van travelling towards the articulated vehicle at an angle. There is no physical evidence to support Mr Gallacher’s view that at the last minute Mr Gordon turned the wheel of the Ford Transit van to the left.
19. Mr Malcolm Newlands was the next witness led at the Inquiry. He had been driving a Ford Transit van in the course of his employment eastwards on Sanderling Road, Paisley towards the roundabout at the junction with White Cart Road. While I am satisfied that Mr Newlands endeavoured to advise the Inquiry of what he remembered occurring on the morning of 2 July 2014 I cannot rely upon the whole of his evidence. His evidence that the Ford Transit van being driven by Mr Gordon exited the roundabout at the junction with White Cart Road, Paisley into Sanderling Road having come round the roundabout in the wrong direction is at odds with the evidence of Mr Gallacher, Mr Clifford, Police Constable Simpson and the Crash Investigation Report to which I shall return shortly. I prefer their evidence. I believe Mr Newlands is simply mistaken. In cross-examination by Ms O’Donnell for Mr Gallacher and Saints Transport Limited, Mr Newlands clarified that all he saw was “the front corner of the transit van appearing in front of the lorry” [in the eastbound carriageway of Sanderling Road] whereupon he heard a loud bang and saw smoke emanating from the collision. In my opinion Mr Newlands, perhaps understandably, given what he saw and the passage of time has assumed that the Ford Transit van being in the correct lane of Sanderling Road for vehicles travelling westwards had in error come round the roundabout the wrong way. That is an incorrect assumption on his part. By his own testimony he did not actually see the Ford Transit van travel around the roundabout. When it was put to him that his recall regarding the braking of the articulated vehicle was at odds with the content of his statement to the police, Mr Newlands could not remember saying to the police that the articulated vehicle braked in advance of impact. Nevertheless he told the Inquiry the content of his statement was “probably” more accurate.
Crash Investigation Report
20. Crown Productions 4 and 5 comprise a Crash Investigation Report prepared by PC Scott Simpson corroborated by PC Ewan Thomson. PC Simpson was called to give evidence at the Inquiry. Although he was subject to appropriate cross-examination by some of the parties at the Inquiry his evidence was in the main unchallenged and was plainly credible and reliable. The Crash Investigation Report prepared by the two police officers is a thorough piece of work which has assisted me greatly in reaching my determination. Its conclusion is that the accident occurred as the result of the Ford Transit van being driven by Mr Gordon negotiating the roundabout at the junction with White Cart Road, Paisley at excessive speed, Mr Gordon then losing control of the van and the van entering the eastbound carriageway of Sanderling Road as it exited the roundabout where the van collided with the articulated LGV being driven by Mr Denis Gallacher at a point some 36 metres west of the roundabout.
21. Large parts of the Crash Investigation Report were agreed by the parties to the Inquiry. They form paragraphs 1, 40-66 of the second Joint Minute of Agreement, which I have reproduced as part of Appendices 1 and 4 and Appendices 5 and 6 to this Determination.
22. PC Simpson testified that he found a nearside tyre mark of the articulated vehicle and also a tyre scuff mark extending towards the front offside tyre of the Ford Transit van. He explained that the scuff mark was post-impact and created by the front offside tyre of the van as it slid towards its resultant position. As regards braking, PC Simpson informed the Inquiry that there was no physical evidence that Mr Gordon had applied the brakes on the Ford Transit van prior to impact. The physical evidence did, however, disclose that Mr Gallacher had reacted and locked the front nearside brake of the articulated vehicle prior to impact. PC Simpson described the physical evidence of the damage to the vehicles as being consistent with “a more gradual move” by the Ford Transit van into the eastbound carriageway of Sanderling Road, Paisley and the path of the articulate LGV rather than “a sharp deviation.”
23. While there was insufficient evidence to calculate the speed of the van (minibus) at the time of the collision PC Simpson testified that the damage to the van was more extensive than to be expected from a crash happening within the 30 mile per hour limit.
24. PC Simpson said the damage to the respective vehicles indicated that the Ford Transit van had come into the articulated LGV “at an angle.” He explained this was evidenced by the pattern of damage to both vehicles. He said on the van there was a vertical impact on the roof extending down to the windscreen and front panel which tied in with the front offside of the lorry. He described the direction of force of impact by the Ford Transit van “going from the offside towards the front nearside” of the articulated LGV, the collision having caused the Ford Transit van to rotate.
25. PC Simpson assisted the Inquiry by indicating that Crown Production No.10, photographs nos. 10, 29 and 30, being some of a number of photographs taken by the Crime Scene Examiner, as referred to in paragraph 19 of the Joint Minute of Agreement between parties which is repeated as Appendix 2 to this Determination, show the impact position of the collision between the two vehicles and confirm the conclusions he and his colleague reached, namely that the collision was the result of Mr Gordon negotiating the roundabout at excessive speed, losing control of his vehicle and entering the opposing lane of Sanderling Road as he exited the roundabout where he collided with the opposing LGV driven by Mr Denis Gallacher.
Response of the Emergency Services
26. Parties were agreed as to the response of the emergency services as set out in the Joint Minute of Agreement, Appendix 2 to this Determination.
27. On 2 July 2014 at around 11:30am, paramedic William Fleming and Ambulance Care Assistant Desmond Donnelly were on duty and responded to a call to attend a road traffic collision at Sanderling Road, Paisley. Upon arrival, William Fleming examined Mr Gordon. The initial examination revealed a head injury, possible chest injury and lower limb crush injury. Mr Gordon was trapped in the minibus he had been driving. He was conscious and feeling short of breath. William Fleming applied a cervical collar, gave him oxygen and carried out basic observations.
28. A short time later, the police, fire service and Emergency Retrieval Medical Service (hereinafter referred to as “ERMS”) arrived at the scene. ERMS doctors Catheryn Bennett and Neil Dignon attended along with critical care nurse Graham Percival.
29. At around 12:24pm, Mr Gordon was extracted from the vehicle by fire service personnel and ambulance personnel. During the extracting Mr Gordon’s condition deteriorated.
30. Dr Catheryn Bennett, anaesthetic registrar, performed emergency anaesthesia bilateral thoracotomies, traumatic cardiac arrest protocol and gave Mr Gordon three units of blood. He was also administered an intravenous painkiller.
31. Thereafter Mr Gordon was conveyed by ambulance to the Accident and Emergency Department at the Southern General Hospital, Glasgow, utilising a police escort to facilitate the transfer.
32. Upon arrival at the Southern General Hospital, Mr Gordon was in cardiac arrest. He was given three further units of blood and 1 mg of adrenalin. After consultation between Dr Nicola Littlewood, Accident and Emergency Consultant, and Dr Wotherspoon, Surgical Consultant, it was agreed that surgical intervention was likely to be futile.
33. Douglas Brian Gordon was pronounced dead on 2 July 2014 at 1:15pm at the Southern General Hospital, Govan Road, Glasgow, by Dr Nicola Littlewood.
Post Mortem Results
34. Crown Productions 2 and 3 are the toxicology and post mortem reports relative to Mr Douglas Brian Gordon’s death dated 30 July and 7 August 2014 respectively. Parties again agreed large tranches of these said Reports as set out in paragraphs 15 to 17 of the said Joint Minute of Agreement, Appendix 2 as follows:-
15. That on 9 July 2014, a post mortem examination was carried out on the deceased by Dr Julia Bell, Forensic Pathologist. The cause of death was found to be 1a) Chest injury due to 1b) Road traffic accident (minibus driver).
16. That Dr Julia Bell, Forensic Pathologist, concluded in the post mortem examination that the deceased “had sustained severe injuries, in keeping with his having been involved in a road traffic accident… Externally, there were various bruises and abrasions on the face, trunk and limbs in addition to a deep laceration on the right knee and a few small lacerations on the face. Deep to this, in the chest, there were multiple fractures of nearly all of the ribs on the right side associated with significant haemorrhage into the right chest cavity and multiple lacerations of the right lung, and there were also a few rib fractures on the left. There was also fracture of the thoracic vertebrae and sternum. In terms of other injuries, there were fractures of the front and back of the pelvis associated with a moderate amount of haemorrhage but there were no significant injuries elsewhere… [I]n terms of natural disease, the heart was enlarged and concentric left ventricular hypertrophy, in keeping with the history of hypertension, and there was also moderate atheromatous narrowing of two of the main coronary arteries. Whilst the chest injuries were considered the main factor in his death, the possibility that underlying natural disease has played a part in the road traffic accident and/or contributed to his death cannot be excluded.”
17. That the Toxicology Report confirms that the blood and urine analysis was negative for alcohol, paracetamol, opiates and drugs of abuse. Blood tests were positive for therapeutic levels of ketamine which was administered in hospital post-accident.
35. In an Affidavit Dr Julia Bell further explained her opinion by confirming that the physical cause of Mr Gordon’s death were the injuries he sustained in a road traffic accident. She advised that, whilst the chest injuries were considered the main factor in his death, the possibility that underlying natural disease has played a part in the road traffic accident and/or contributed to his death cannot be excluded. She commented further that she “can’t exclude the possibility that his underlying natural disease led to the accident, for example, he may have had a “heart attack” prior to the crash that led to a reduced level of consciousness which resulted in the collision.” (my emphasis)
36. Dr Bell deferred to a clinician whom she commented would be “in a better position to comment on the likelihood and type of symptoms he [the deceased] would have experienced given the presence of heart disease.”
37. Parties further agreed per paragraph 2 of the Fourth Joint Minute of Agreement (Appendix 8) Dr Bell has stated that “while there was evidence of chronic heart disease, she would not necessarily have expected to find any acute changes or pathology if Mr Gordon had had a “heart attack” prior to the collision. Dr Bell also stated that there would be no specific acute pathology to suggest that a sleep apnoeic event had occurred.”
Examination of the Ford Transit Minibus and the Articulated Vehicle
38. Parties to the Inquiry agreed that the following facts should be admitted in evidence per paragraphs 23 to 25 of the Joint Minute of Agreement (Appendix 2) viz:-
23. On 7 July 2014, George Scott McIntyre, Vehicle Examiner with the Vehicle and Operator Services Agency, at Karen Yuill Recovery Ltd, Blantyre Industrial Estate, Blantyre, conducted an examination of a white Ford transit sixteen passenger seater public service vehicle bearing registration mark SJ13JYU, which was towing a 750kg luggage trailer bearing identification number 070611, driven by the deceased. At the time of the inspection, there were no pre collision defects noted that could have led to a loss of control of the vehicle or trailer or increased the severity of the collision. The mechanical condition of the vehicle and trailer were not contributory factors in the collision.
24. On 8 July 2014, George Scott McIntyre, Vehicle Examiner with the Vehicle and Operator Services Agency, at Karen Yuill Recovery Ltd., Blantyre Industrial Estate, Blantyre, conducted an examination of a white MAN TGX26:440 HGV tractor unit bearing vehicle registration mark T40STS, driven by Denis Gallacher. At the time of the inspection, there were no pre collision defects noted that could have led to a loss of control of the vehicle or increased the severity of the collision. The mechanical condition of the vehicle was not a contributory factor in the collision.
25. On 7 July 2014, George Scott McIntyre, Vehicle Examiner with the Vehicle and Operator Services Agency, at Karen Yuill Recovery Ltd., Blantyre Industrial Estate, Blantyre, conducted an examination of an SD semi-trailer bearing identification number C068435, attached to the aforesaid tractor being driven by Denis Gallacher. At the time of the inspection, there were no pre collision defects noted that could have led to a loss of control of the trailer or increased the severity of the collision. The mechanical condition of the trailer was not a contributory factor in the collision.
Evidence of Airlink Management Limited
39. Evidence was led from Ms Rhianna Carr, the Operations Manager of Airlink Management Limited in 2014. She remembered interviewing Mr Gordon for the position of a Passenger Carrying Vehicle (PCV) driver at Airlink Management Limited towards the end of June 2014. She described Mr Gordon as being “very friendly, well presented and with a nice manner.” She agreed with the Procurator Fiscal Depute that Mr Gordon possessed the ideal attributes of an employee particularly in the field of customer service. Having reviewed and considered Mr Gordon’s CV (Crown Production No.36) Ms Carr formed the opinion that he was an experienced driver both as a self-employed taxi driver and as a bus driver with First Bus. Mr Gordon was noted to possess an LGV2 and PVC driving licence and to have a CPC card.
40. In 2014 Airlink Management Limited did not undertake any pre-employment checks by, for example, taking up references. Since May 2015 their practice has altered and Ms Carr has sought references for potential employees in general terms, engaging persons subject to receipt of satisfactory references.
41. Ms Carr testified that, at his interview, she inquired of Mr Gordon if he had any medical or health conditions. He replied “no” or “no issues” and stated he had passed his driver’s medical and had his licence renewed by the DVLA in December 2013, valid for 5 years. Ms Carr did not ask Mr Gordon if he took any regular medication.
42. Airlink Management Limited did not require Mr Gordon to complete any declaration concerning his health nor did they carry out any medical or fitness test prior to employing drivers. Had Mr Gordon informed Ms Carr of any medical condition, such as hypertension or sleep apnoea, Ms Carr informed the Inquiry she would have had to look into the condition and seek advice from the company’s insurers.
43. Ms Carr said Mr Gordon received training from Mr Brian Rice, an experienced driver with the company, whose personality and shift pattern enabled him to undertake same. At the time there was no training manual in existence. After Mr Gordon’s training was carried out a record was subsequently typed up by Ms Carr and inserted into his file. Crown Production No.19 is a copy of the pro forma record typed up by her following Mr Gordon’s training on 30 June 2014 based on the information supplied by Mr Rice. The Inquiry was told that in 2016 a training form had been introduced that is now signed off by both the trainer and the employee and kept for record purposes.
44. Ms Carr did not specifically recall seeing Mr Gordon on the morning of 2 July 2014 although she thought she probably had done so.
45. In cross-examination Ms Carr told the Inquiry that she placed reliance on the DVLA having given someone a licence that they are fit to drive. She raised the issue of a licence by DVLA as an “assurance.”
46. Mr Brian Rice who described himself as a bus driver told the Inquiry he worked for “the same company as Rhianna Carr” (even if he did not know the exact name thereof). Conflicting with the evidence of Ms Carr, Mr Rice said he had not been with Airlink Management Limited for two years but had only worked for them for a period of 8 months when he came to train Mr Gordon at the end of June 2014. Mr Rice explained the training given to Mr Gordon, the details of which are not material to this Inquiry.
47. Mr Rice was very complimentary of Mr Gordon. He described him as a “lovely big guy…I can’t say anything too highly about him.” He did not recall any issues with Mr Gordon over the training. Mr Rice stated that he could not recall speaking with Ms Carr about Mr Gordon’s training. He said “the manager takes it for granted I went through everything.”
48. Mr Rice did not think he had seen Mr Gordon on the day of the accident. He was unable to assist the Inquiry further.
Evidence of Mr Gordon’s General Practitioner
49. Dr David Taylor, Mr Gordon’s general practitioner, testified that Mr Gordon’s most notable health issue was hypertension or high blood pressure. He told the Inquiry that blood pressure issues had featured significantly in Mr Gordon’s medical records for a long period of time and that, at the time of his death, Mr Gordon was on four medications, all used in the management of blood pressure.
50. Dr Taylor’s surgery operated a system of computerised notes. Dr Taylor took the Inquiry through his referrals of Mr Gordon to the Blood Pressure Clinic, Western Infirmary/Gartnavel General Hospital, Glasgow commencing in October 2010 (Crown Production No.11 pages 160 et seq). In that referral the doctor recorded Mr Gordon’s blood pressure as 195/110 which he categorised “definitely high” against what he described as the upper limit of normal of 140/90.
51. Mr Gordon’s GP records and Blood Pressure Clinic records produced at the Inquiry reveal that for a number of years from 2009 to 2013 his blood pressure was above the upper limit of normal (140/90). Dr Taylor testified that Mr Gordon had a lengthy history of high blood pressure. He said Mr Gordon had very significant high blood pressure problems.
52. Crown Production No.38 gives a chronology of blood pressure readings taken from Mr Gordon’s medical records over the years as follows:-
4/12/2009 168/102
16/4/2010 185/90
13/10/2010 195/110
3/11/2010 176/110
16/2/2011 176/104
20/4/2011 177/104
18/5/2011 200/100
27/6/2011 202/100
7/7/2011 193/98
20/7/2011 210/100
27/7/2011 177/102
5/10/2011 142/100
7/22/2011 144/102
8/7/2012 142/100
19/3/2012 191/108
19/7/2012 190/90
24/10/2013 170/90
22/11/2013 176/106
22/11/2013 172/94
53. Dr Taylor said Mr Gordon’s obesity was a contributing factor to his high blood pressure.
54. Dr Taylor advised Mr Gordon was accepted by the Blood Pressure Clinic as a patient and attended a number of reviews at the clinic before being discharged at his own request in December 2012. Dr Taylor said that he saw Mr Gordon on 13 February 2013 when the notes reveal (Crown Production No.11, page 126) that Mr Gordon did not wish any further involvement with the Blood Pressure Clinic, nor did he wish his blood pressure taken that day by his general practitioner, notwithstanding the doctor’s advice of the increased risk of cardiovascular disease. Dr Taylor said he could only advise and recommend treatment. If, however, a patient chose to follow a different course, that was a matter for them. Mr Gordon made it clear to Dr Taylor that he preferred to manage his blood pressure alone.
55. Some eight months later, on 24 October 2013, Mr Gordon’s blood pressure reading was taken by Dr Taylor and found to be 170/90. Mr Gordon agreed to be re-referred to the Blood Pressure Clinic to measure his blood pressure readings over a 24 hour period. Dr Taylor indicated he was hoping to find out Mr Gordon’s blood pressure was artificially raised when attending his surgery (known as white-coat hypertension). Dr Taylor felt white-coat hypertension may have been contributing to the high blood pressure readings. At that time Mr Gordon was wanting to return to work and obtain his Group 2 (HGV licence). Dr Taylor realised that Mr Gordon’s blood pressure readings were “too high” to pass the DVLA medical requirements for the issuing of a Group 2 licence. He told the Inquiry he “explained [to Mr Gordon] the DVLA would require a history of his blood pressure readings and his history was not satisfactory.”
56. Dr Taylor confirmed receipt of a letter from the Western Infirmary dated 17 January 2014 notifying him that Mr Gordon had informed the Blood Pressure Clinic that he no longer required an appointment with them. Although Mr Gordon had had a D4 Medical Examination Report completed, following his assessment by Dr Lesley Anne Somerville, a registered medical practitioner, on 22 November 2013 in connection with his application for the renewal of his Group 2 licence and subsequently had his application approved and his Group 2 licence issued by the DVLA in December 2013 (for 5 years), he did not inform Dr Taylor of the renewal of his Group 2 licence, notwithstanding that he attended the medical practice on a number of occasions between January and May 2014 including a consultation with Dr Taylor himself on 1 May 2014.
57. The medical standards applied by the DVLA differ as between Group 1 and Group 2 licence holders. The DVLA – At a Glance to the Current Medical Standards of Fitness to Drive [2013 Edition] (Crown Production No.28) identifies the two groups of licence holders viz:-
· Licence Groups
The medical standards refer to Group 1 and Group 2 licence holders.
Group 1 includes motor cars and motor cycles.
Group 2 includes large lorries (category C) and buses (category D). The medical standards for Group 2 drivers are very much higher than those for Group 1 because of the size and weight of the vehicle. This also reflects the higher risk caused by the length of time the driver may spend at the wheel in the course of his/her occupation.
All drivers who obtained entitlement to Group 1, category B (motor car) before 1 January 1997 have additional entitlement to category C1 and D1. C1 is a medium size lorry of weight between 3.5 and 7.5 tonne. D1 is a minibus of between 9 and 16 seats, not for hire or reward.
Holders of C1 and D1 entitlement retain the entitlement until their licence expires or it is medically revoked. On subsequent renewal the higher medical standards application to Group 2 will apply.
Under certain circumstances volunteer drivers can drive a minibus of up to 16 seats without having to obtain category D1 entitlement. Individuals should consult DVLA for a detailed fact sheet.
· Age Limits
Group 1: Licences are normally issued valid until age 70 years (Till 70 licence) unless restricted to a shorter duration for medical reasons as indicated above. There is no upper limit but after age 70 renewal is necessary every 3 years. All licence applications require a medical self declaration by the applicant.
A person in receipt of the higher rate of the Mobility Component of Disability Living Allowance may apply for a licence (Group 1 category B) from age 16 years, instead of the usual lower age limit of 17 years.
Group 2: Excepting in the armed forced and certain PCV licences, Group 2 licences, lorries (category C) or buses (category D) are normally issued at age 21 years and are valid till age 45 years but may be issued from age 18 where the licence holder has obtained or is undertaking a Certificate of Professional Competence (CPC) initial qualification.
Group 2 licences are renewable thereafter every five years to age 65 years unless restricted to a shorter period for medical reasons.
From age 65 years Group 2 licences are renewable annually without upper age limit. All Group 2 licence applications must be accompanied by a completed medical application form D4.
58. Dr Taylor informed the Inquiry that Mr Gordon’s blood pressure readings were such that he did not require to notify DVLA in respect of his driving per se (Group 1). His blood pressure was not at a level to preclude him from driving Group 1 vehicles.
59. Dr Taylor was aware of the DVLA – At a Glance Guide. He referred the Inquiry to Chapter 2 entitled “Cardiovascular Disorder” and the section dealing with Hypertension (Crown Production No.28 page 653) which I repeat below for ease of reference:-
| CARDIOVASCULAR DISORDER | GROUP 1 ENTITLEMENT ODL - CAR, M/CYCLE | GROUP 2 ENTITLEMENT BOC - LGV/PCV (LORRY/BUS) |
| HYPERTENSION | Driving may continue unless treatment causes unacceptable side effects. DVLA need not be notified | Disqualifies from driving if resting BP consistently 180 mm Hg systolic or more and/or 100 mm Hg diastolic or more. Re/licensing may be permitted when controlled provided that treatment does not cause side effects which may interfere with driving. |
60. Dr Taylor explained it was his understanding that the phrase “resting consistently” required more than one test. He was familiar with the D4 medical examination report to be completed by a registered medical practitioner following upon medical assessment in relation to a licence application seeking a Group 2 licence and the requirement, if the licence applicant is on anti-hypertension treatment (as in Mr Gordon’s case), to provide three previous blood pressure readings with dates if available (Crown Production No.16, page 348). He added that he would “average” the readings and if the average was above 180 systolic or above 100 diastolic that could cause him concerns.
61. Dr Taylor acknowledged that the reading of 170/90 on 24 October 2013 although high was “not excessive for DVLA purposes.” He said it was “one of the better ones” in Mr Gordon’s history of blood pressure readings. Had he been asked by Mr Gordon at that time for an appointment to undertake a D4 medical assessment in conjunction with his application to renew his Group 2 licence, Dr Taylor was clear that he would have told Mr Gordon he could make such an appointment but he did not think Mr Gordon would pass because of his blood pressure history. Had he been asked [by the DVLA] for a note of Mr Gordon’s last three blood pressure readings at the beginning of December 2013 from his GP records (and therefore excluding the findings of the registered medical practitioner during the D4 medical examination on 23 November 2013, of which Dr Taylor was then unaware) Dr Taylor would have responded thus:-
24/10/2013 170/90
19/7/2012 190/90
19/3/2012 191/108
(average of 183.7/96)
62. Dr Taylor observed that t