INQUIRY INTO THE FATAL ACCIDENTS AND SUDDEN DEATHS INQUIRY (SCOTLAND) ACT 1976 INTO THE DEATHS OF JOHN KERR SWEENEY, LORRAINE SWEENEY, ERIN PAULA MCQUADE, STEPHENIE CATHERINE TAIT, GILLIAN MARGARET EWING AND JACQUELINE MORTON
SHERIFF COURT OF GLASGOW AND STRATHKELVIN
[2015] FAI 31
B757/15
Under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976
DETERMINATION
By
Sheriff John Beckett QC
in the Fatal Accident Inquiry into the deaths of
John Kerr Sweeney
Lorraine Sweeney
Erin Paula McQuade
Stephenie Catherine Tait
Gillian Margaret Ewing
Jacqueline Morton
GLASGOW, 7 DECEMBER 2015
The Sheriff, having heard and considered all of the evidence, and the submissions of parties, finds and determines that:
1. In terms of section 6 (1) (a) of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976
1.1 John Kerr Sweeney, born 15 April 1946 and who resided in Dumbarton, died at Queen Street, Glasgow at 2.29pm on 22 December 2014.
1.2 Lorraine Sweeney, born 2 March 1945 and who resided in Dumbarton, died at Queen Street, Glasgow at 2.29pm on 22 December 2014.
1.3 Erin Paula McQuade, born 27 September 1996 and who resided in Dumbarton, died at Queen Street, Glasgow at 2.29pm on 22 December 2014.
1.4 Stephenie Catherine Tait, born 10 February 1985, who resided in Glasgow, died at Queen Street, Glasgow at 2.29pm on 22 December 2014.
1.5 Gillian Margaret Ewing, born 2 February 1962, who resided in Cyprus and Edinburgh, died at Queen Street, Glasgow at 2.29pm on 22 December 2014.
1.6 Jacqueline Morton, born 30 May 1963, who resided in Glasgow, died at Queen Street, Glasgow at 2.29pm on 22 December 2014.
2. In terms of section 6 (1) (b) of the Act
2.1 The cause of the death of John Kerr Sweeney was sustaining multiple injuries in a road traffic collision (pedestrian).
2.2 The cause of the death of Lorraine Sweeney was sustaining multiple injuries in a road traffic collision (pedestrian).
2.3 The cause of the death of Erin Paula McQuade was sustaining multiple injuries in a road traffic collision (pedestrian).
2.4 The cause of the death of Stephenie Catherine Tait was sustaining multiple injuries in a road traffic collision (pedestrian).
2.5 The cause of the death of Gillian Margaret Ewing was sustaining multiple injuries in a road traffic collision (pedestrian).
2.6 The cause of the death of Jacqueline Morton was sustaining multiple injuries in a road traffic collision (pedestrian).
2.7 The cause of the accident resulting in the deaths of John Kerr Sweeney, Lorraine Sweeney, Erin Paula McQuade, Stephenie Catherine Tait, Gillian Margaret Ewing and Jacqueline Morton was the loss of control of Glasgow City Council bin lorry registered number SB62 NKD by its driver, Henry Campbell Clarke, while he was driving northwards on Queen Street, as a result of which the lorry mounted the pavement on the west side of Queen Street and collided with a number of pedestrians.
2.8 Mr Clarke lost control of the lorry when he suffered an episode of neurocardiogenic syncope whereby he temporarily lost consciousness (he fainted) so that he was unable to control the movement and direction of the lorry.
3. In terms of section 6 (1) (c) of the Act
the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;
3.1 For Mr Clarke to have told the whole truth to Dr McKaig, Dr Lyons and Dr Langan about what had occurred on 7 April 2010.
3.2 For Dr Lyons to have advised Mr Clarke to notify DVLA given what he was told on 8 April following the incident on 7 April 2010.
3.3 For Dr Langan to have clarified with Dr Lyons the circumstances of Mr Clarke’s faint on 7 April 2010 before concluding that he had suffered a simple faint.
3.4 For Mr Clarke to have provided true and accurate information in completing an occupational health questionnaire in connection with his application for employment with Glasgow City Council in December 2010.
3.5 For First Glasgow to have provided a full, accurate and fair employment reference to Glasgow City Council in respect of Mr Clarke’s application for employment.
3.6 For Mr Clarke to have provided true and accurate information about his medical history on BUPA medical questionnaires in December 2011.
3.7 For Mr Clarke to have disclosed the incident of 7 April 2010 in DVLA form D47 and to Dr Willox in December 2011.
3.8 For Mr Clarke, after fainting at the wheel of his bus on 7 April 2010, to have refrained from continuing to drive buses and to have refrained from seeking further employment as a group 2 driver in the absence of his having told the truth to doctors and without having acted upon the advice which would have been forthcoming, and thereafter without making his relevant medical history known to Glasgow City Council to the extent required in its recruitment, appointment and promotion processes.
4. Section 6 (1) (d) of the Act
the defects, if any, in any system of working which contributed to the death or any accident resulting in the death;
I make no findings under this section.
5. In terms of section 6 (1) (e) of the Act
any other facts which are relevant to the circumstances of the death.
In my narrative of facts I set out facts relevant to the circumstances of the deaths. Not all of the facts narrated have direct relevance, but they are relevant to the recommendations which I am making.
Recommendations
I make the following recommendations:
5.1 Doctors generally, and general practitioners in particular, should take steps to ensure that medical notes are made and kept in such a way as to maximise their ability to identify repeated episodes of loss of consciousness, loss of or altered awareness, in the case of patients who are or may become drivers.
5.2 When a doctor is advising an organisation employing a driver as to that driver’s fitness to drive following a medical incident whilst driving, that organisation should provide all available information about the incident to the doctor and the doctor should insist on having it prior to giving advice to the organisation and the driver.
5.3 Glasgow City Council, when employing a driver, should not allow employment to commence before references sought have been received.
5.4 Glasgow City Council should carry out an internal review of its employment processes with a view to ascertaining potential areas for improvement in relation to checking medical and sickness absence information provided by applicants, for example by having focussed health questions within reference requests for drivers and obtaining medical reports in relation to health related driving issues from applicants’ GPs.
5.5 Glasgow City Council should provide its refuse collection operators with some basic training to familiarise them with the steering and braking mechanisms of the vehicles in which they work.
5.6 Local Authorities and any other organisations which collect refuse, when sourcing and purchasing refuse collection vehicles which are large goods vehicles, should seek to have AEBS fitted to those vehicles wherever it is reasonably practicable to do so.
5.7 Local Authorities and any other organisations which collect refuse, and which currently have large goods vehicles without AEBS but to which AEBS could be retrofitted, should explore the possibility of retrofitting with the respective manufacturer.
5.8 Glasgow City Council should seek to identify routes between refuse collection points which, so far as is reasonably practicable, minimise the number of people who would be at risk should control be lost of a refuse collection lorry.
5.9 The potential for the presence of exceptional numbers of pedestrians at particular times should be taken account of as part of route risk assessment in refuse collection.
5.10 The Driver and Vehicle Licensing Agency (DVLA) should satisfy itself as to precisely what the categorisation is intended to mean and to achieve in the loss of consciousness/loss of or altered awareness section of the guidance contained in its “At a Glance Guide to the Current Medical Standards of Fitness to Drive.” (“at a glance”)
5.11 Having done so, DVLA should then ensure that the meaning is made clear to those who apply the guidance in practice.
5.12 DVLA should consider if a flow chart could be provided to guide doctors through the categorisations contained in the loss of consciousness/loss of or altered awareness section of “at a glance.”
5.13 DVLA should consider whether the section of “at a glance” on loss of consciousness/loss of or altered awareness gives sufficient weight to the absence of prodrome given its significance for road safety.
5.14 DVLA should consider whether the section of “at a glance” on loss of consciousness/loss of or altered awareness gives sufficient weight to a medical event occurring at the wheel of a vehicle and its consequences.
5.15 DVLA should change its policy on notification from third parties so that relevant fitness to drive information from ostensibly reliable sources, such as the police, can be investigated whether or not it comes in written form.
5.16 DVLA should redouble its efforts to raise awareness of the implications of medical conditions for fitness to drive amongst the medical profession.
5.17 The Secretary of State for Transport should instigate a consultation on how best to ensure the completeness and accuracy of the information available to DVLA in making fitness to drive licensing decisions with a view to making legislative change.
5.18 Part of this exercise should involve considering increasing the penalties and altering the mode of prosecution for contravention of section 94 of the Road Traffic Act 1988.
5.19 The Secretary of State for Transport should instigate a consultation on whether it is appropriate that doctors should be given greater freedom, by the General Medical Council, or an obligation, by Parliament, to report fitness to drive concerns directly to DVLA.
Matters for consideration:
I suggest that the following matters ought to be given consideration by those concerned.
6.1 Occupational health doctors performing D4 examinations and providing advice to employers on applicant drivers, and employers of drivers who facilitate their staff applying for renewal of group 2 licences without the involvement of GPs, should consider whether to require the applicant to sign a consent form permitting release by any GP of relevant medical records to the occupational health doctor.
6.2 DVLA, the Crown Prosecution Service and Crown Office and Procurator Fiscal Service should review whether there are policies in place which prevent or discourage prosecution for breaches of sections 94 and 174 of the Road Traffic Act 1988. If there are such policies, consideration should be given by DVLA and the prosecuting authorities to whether they are appropriate where the current fitness to drive regime is a self-reporting system which is vulnerable to the withholding and concealing of relevant information by applicants.
6.3 DVLA and the Department for Transport should consider how best to increase public awareness of the impact of medical conditions on fitness to drive and the notification obligations in that regard.
NOTE
Introduction
[1] In the first part of my note I set out a narrative of the important parts of what was established on the evidence together with some commentary as to my assessment of representations made by Henry Clarke. In the second part, I refer briefly to the law governing Fatal Accident Inquiries. I refer to parts of the evidence generally and consider evidence where there was controversy or a lack of clarity and explain my assessment of such evidence. I then examine particular issues which were raised in the course of the Inquiry.
Contents
Part 1 paragraphs 3-175
[2] The people who died 3-8
22 December 2014 9-33
The driver 34-35
Diagnosis and medical treatment after 22 December 2014 36-37
Neurocardiogenic syncope 38-45
The location of the accident 46-52
Vehicle information 53-74
Mr Clarke’s driving licences 75-77
Guidance to drivers 78-81
GP medical records 82-84
Mr Clarke’s medical history prior to 22 December 2014 85-90
Mr Clarke’s representations prior to April 2010 91-100
Mr Clarke’s employment as a bus driver 2008-2010 101-103
The events of 7 April 2010 104-106
Mr Clarke’s representations in April 2010 107-110
Mr Clarke’s employment with GCC and his representations after April
2010 but before December 2014 111-121
DVLA - fitness to drive 122-133
“At a Glance Guide to the Current Medical Standards of Fitness to Drive”134-152
Mr Clarke’s representations after the accident on 22 December 2014 153-160
Mr Clarke’s interactions with DVLA in 2015 161-175
Part 2 176-575
Representation 176
Introduction 177-183
The legal framework 184-198
Section 5 of the 1976 Act 199-214
Evidence led for the families 215-226
Assessment of the events of 7 April 2010 227-233
Mr Clarke’s interactions with doctors in April 2010 234-260
Group 2 licence renewal December 2011 261-265
Assessment of Mr Clarke’s written and oral representations 266
MEDICAL OPINION EVIDENCE 267-323
Professor Andrew Rankin 267-274
Dr Nicholas Boon 275-298
Dr Ronald Neville 299-312
Dr Daniel Rutherford 313-323
Difficulties in interpreting DVLA guidance on loss of consciousness, etc 324-329
Assessment of the actions of doctors in April 2010 330-347
What would have happened if Mr Clarke had notified DVLA
of the events of 7 April 2010? 348-360
Would Mr Clarke have been employed by GCC had notification
been made to DVLA in 2010? 361-369
A further reasonable precaution? 370-378
Did GCC receive employment references in respect of Mr Clarke? 379-396
What was the impact of Mr Clarke’s references? 397-406
Recruitment considerations 407-425
DVLA and the “at a glance” guide – the evidence of Dr Parry 426-463
Conclusions and recommendations relating to DVLA and
the Department for Transport 464-480
The actions of the crew 481-494
Vehicle technology 495-512
Collection routes and risk assessment 513-559
Concluding remarks 560-575
APPENDICES
Appendix 1 – List of witnesses who gave evidence page 158
Appendix 2 – Certain legislation relevant to DVLA page 159
Appendix 3 – Damage to bin lorry, agreed facts page 164
Appendix 4 – Mr Clarke’s medical treatment from 22 December,
agreed facts page 165
Appendix 5 – Mr Clarke’s interaction with DVLA post 22 December page 168
Appendix 6 – Ms Watts’s contention on Dr Neville’s reports page 171
Appendix 7 – Croftside Avenue, Glasgow – bin lorry accident
April 2015, agreed facts page 173
Appendix 8 – Information from Department for Transport page 174
Appendix 9 – Agreed fact and law concerning AEBS and LDWS page 175
Appendix 10 – Conditions listed on DVLA website page 179
www.gov.uk/driving-medical-conditions
for which DVLA offers advice about the implications for driving and notification.
PART 1 – WHAT HAPPENED
The people who died
[3] Gillian Margaret Ewing was 52 years old when she died. She had moved to Cyprus some years ago but returned to Scotland for Christmas 2014. She had travelled with her daughter Lucy to Glasgow to replace a ring of sentimental value at a particular jeweller’s. They were on Queen Street heading for the return train to Edinburgh when she was struck by the bin lorry, with her daughter standing next to her.
[4] Stephenie Catherine Tait was a dedicated 29-year old school teacher at St Philomena's Primary School, Glasgow. She had been Christmas shopping with her partner on 22 December 2014. She was queuing on the pavement at the Virgin Money cash dispenser when she was struck by the bin lorry.
[5] John Kerr Sweeney, aged 68, was retired after a full working life, including time spent in Canada, and lived with his wife.
[6] Lorraine Sweeney, aged 69, had worked in a coffee shop. Mr and Mr Sweeney were very close with their children and grandchildren and spent much time together as a family.
[7] Erin Paula McQuade, aged 18, was the oldest of four siblings and was in her first year of studying English Literature at Glasgow University. She held a part time job and was a volunteer, actively involved in her local parish. She had been Christmas shopping with her mother Jacqueline McQuade and her grandparents Jack and Lorraine Sweeney and, having had lunch together, they found themselves on Queen Street when Mr and Mrs Sweeney and Erin McQuade were struck by the bin lorry.
[8] Jacqueline Morton, was 51 years old and worked for HMRC at Cochrane Street, Glasgow. She had finished work early as she was going to collect her two young granddaughters when she was struck by the bin lorry.
22 December 2014
[9] On 22 December 2014, Mr Henry Campbell Clarke, known to his colleagues as Harry, began his shift as a Glasgow City Council (GCC) refuse collection lorry driver at about 6am which was due to finish at about 3.30pm. Mr Clarke attended first at the Shieldhall Depot in Glasgow where he was seen by an acting supervisor, Alan Kernaghan. Mr Kernaghan saw nothing unusual about Mr Clarke to cause concern as to his health or sobriety and he issued him with keys for bin lorry, registration SB62 NKD. Mr Clarke carried out a number of safety checks on the vehicle as drivers were contracted to do each day.
[10] Mr Clarke then drove to the Anderson Depot arriving at about 7am to collect his crew, Matthew Telford and Henry Toal, who were employed as refuse collectors by GCC. All three men had been working together for some months on what was referred to in evidence as the “middle ground” or “route 2” collection route in Glasgow City Centre. Neither Mr Telford nor Mr Toal holds a full driving licence.
[11] Throughout the course of the morning Mr Clarke drove the lorry along the collection route, stopping to allow his crew to collect refuse at set collection points.
[12] At about 1045am Mr Clarke returned the crew to the Anderson depot for their lunch break. He then drove to the Shieldhall depot to empty the lorry. Whilst there, he had a lunch break of approximately half an hour. He ate a pot noodle, crisps and chocolate biscuits. He kept water in the lorry. He spent some time with Ian Quigley, another driver, who found Mr Clarke to be his normal self.
[13] Thereafter, Mr Clarke returned with the lorry to the Anderson depot arriving at approximately midday and collected Mr Telford and Mr Toal. During the course of the afternoon Mr Clarke continued to drive the lorry along the collection route for that day, stopping at set collection points.
[14] After stopping to collect refuse from a bin on Mitchell Street, Mr Clarke drove the lorry along Argyle Street towards his next collection point at St Vincent Street. He stopped at traffic lights before turning left into Queen Street. Both crew members were seated in the rear passenger seats of the lorry wearing their seat belts. A handrail/safety barrier separated the crew from the front of the cab where the driver sat. Mr Telford and Mr Toal were talking about football.
[15] So far as can be accurately ascertained from tachograph data, the lorry was travelling along Queen Street at no more than 32 kilometres per hour (19.88 mph). It initially slowed as it approached the junction between Queen Street and Ingram Street but then began to gather speed.
[16] The crew felt the lorry veer to the left of the road as it approached the area near to the Gallery of Modern Art.
[17] Mr Telford said, "What are you doing, Harry?" and noticed that Mr Clarke’s head was slumped to the left. Mr Clarke did not respond and appeared to be unconscious. Mr Clarke had lost consciousness suddenly, having felt no warning that anything was wrong. Mr Telford continued to shout at Mr Clarke whose whole body then slumped to the left. The seat belt appeared to be holding him up in his seat and his feet remained in place. Mr Clarke’s hands were not on the wheel of the lorry and appeared to be down at his side. Once again Mr Clarke did not respond. Mr Telford stretched his seatbelt and lifted himself up from his seat. He started to scream at Mr Clarke and punched him repeatedly on the back in an attempt to get a response. Mr Telford shouted, "You're killing people, Harry", but there was no response. Mr Telford then crouched down behind the driver’s seat. Mr Toal, who was further away from the driver and the controls than Mr Telford, seems to have been in a state of shock throughout and took no action before he crouched down in order to protect himself prior to the final collision.
[18] The lorry had continued to veer to the left before mounting the west pavement near to the Gallery of Modern Art on Queen Street at approximately 2.29 pm and at this stage it was travelling at 26 to 30kph (16.16-18.64 mph). At further stages of its journey, which were not established with precision in the evidence, the lorry increased in speed to a maximum speed of between 39 and 42kph (24.23-26.09 mph).
[19] The lorry began to travel north on the pavement. It struck a number of pedestrians before the front of the lorry struck a black metal bin which was pushed north on the pavement, creating scratches there.
[20] As the lorry continued north it struck John Sweeney, Lorraine Sweeney, Erin McQuade and other pedestrians. The black bin separated from the lorry, the door of the bin opened and the metal insert was ejected from within. Both items came to rest on the west pavement. The front nearside wheel of the lorry struck the wall of the Virgin Money building, damaging the wheel studs and creating gouges in the stone wall of the building.
[21] The lorry continued to travel north and the front nearside of the cab struck the wall mounted Virgin Money and Pizza Express placard signs, removing the latter from the wall. The lorry struck further pedestrians including Stephenie Tait and then Gillian Ewing.
[22] The lorry also struck and damaged various sign and traffic light poles. None of the poles were uprooted. Before the vehicle rejoined the carriageway it struck the traffic light pole at the corner of Queen Street and St Vincent Place causing the yellow pedestrian button control box fitted thereto to be detached and projected northwest into St Vincent Place.
[23] On entering the pedestrian crossing between Queen Street and St Vincent Place the lorry struck Jacqueline Morton and another pedestrian.
[24] The lorry then travelled north on George Square. At the junction of George Square and West George Street, the lorry struck and damaged a black Nissan Juke car, registration VK63 KSV, a silver Mitsubishi Lancer car, registration DV57 DZF, and a silver Skoda Octavia car, registration SJ60 VWN. All of these vehicles were stationary when struck and all were damaged.
[25] The Skoda Octavia was stationary at the traffic lights at the junction of Queen Street at West George Street when the lorry collided into the rear of the vehicle, pushing it through the junction to the canopy area of the Millennium Hotel.
[26] The lorry then crossed the north carriageway of George Square and mounted the north pavement whereby the front offside struck a wall of the Millennium Hotel, damaging metal window frames and smashing panes of glass and damaging the lorry, including the brake foot valve and brake distribution valve, before coming to a halt facing generally north on the north footway. At the point of impact, the approximate speed of the lorry was 18kph (11.18 mph).
[27] The period between the lorry first veering to the left and finally coming to a halt was approximately 19 seconds.
[28] The crew members got out of the lorry by the passenger door. At that time Mr Clarke appeared still to be unconscious at the wheel. He was groaning and was very grey in colour. An off duty nurse, Lauren Mykoliw, climbed into the cab in order to assist him. He was conscious by now and seated in an upright position in the driver’s seat, wearing his seat belt.
[29] Mr Clarke was able to communicate with Ms Mykoliw and asked her if he had had a heart attack. Mr Clarke told her that he remembered sitting at the traffic lights and then woke up where he was in the lorry. He was pale, a bit sweaty and looked like he had had a shock. He told her that, at this point, he was feeling clammy and dizzy. Ms Mykoliw asked Mr Clarke if he had blacked out or felt dizzy before the crash and he replied that he had not.
[30] Ronald Hewitson, a paramedic, attended to Mr Clarke who seemed pale and slightly confused. Mr Hewitson carried out some initial tests including an ECG and took Mr Clarke's blood pressure. The results were normal.
[31] Mr Telford and Mr Toal sustained minor injuries. In addition, fifteen pedestrians were injured, either as a result of being struck by the lorry or as a result of getting out of its way. The noise of the metal bin being pushed along the pavement may have alerted some pedestrians to look around, see the approaching lorry and take avoiding action.
[32] Maureen Ann Quinn, Alexander Malcolm and their granddaughter aged 3, Ewan Robert Little, Mhairi McLaughlin, Joanne Wilson, Lynn Grieve, William Brannan, Alix Stewart, Danielle Dawson, Irene McAuley, Marie Weatherall, Elaine Morrell, Sean Dunipace and George Reid sustained injury. The injuries sustained by Alix Stewart, Irene McAuley, Marie Weatherall and Elaine Morrell were serious and have had profound consequences for them.
[33] Mr Clarke was taken by ambulance to hospital for treatment and assessment.
The driver
[34] Henry Campbell Clarke, date of birth 10 January 1957, is 58 and currently lives alone. He is a professional driver of large vehicles. He left school at 15 and at some point worked for Glasgow Corporation. He was employed by John G Russell as a large goods vehicle driver in the early 1980s for around five years. He drove articulated trucks as he later did working for DHL. He enjoyed this role.
[35] Mr Clarke was employed as a bus driver for First Glasgow[1] from 2008 to 2010. He has been employed by GCC since 5 January 2011, first as a minibus driver for children and the elderly, thereafter driving a gritting truck before becoming a bin lorry driver.
Diagnosis and medical treatment after 22 December 2014
[36] This was proved in paras 6-18 of the third joint minute which I reproduce as appendix 4. There was no evidence from blood tests to suggest that Mr Clarke had taken alcohol or any other drug. Whilst three unopened bottles of beer were found in the cab of the bin lorry after the accident, consumption of alcohol had no part to play.
[37] Mr Clarke remained in hospital as an inpatient at the Western Infirmary, Glasgow until his discharge on 5 January 2015, during which time he was examined and assessed by a number of doctors. Extensive testing revealed no abnormalities until a “tilt table” test offered some confirmation for an already presumed diagnosis of neurocardiogenic syncope. Monitoring of his heartbeat had revealed no abnormality by 20 April 2015. Ultimately, the conclusion was reached that on 22 December 2014, Mr Clarke had suffered an episode of neurocardiogenic syncope.
Neurocardiogenic syncope
[38] I derive the following from the evidence of two cardiologists, Professor Andrew Rankin and Dr Nicholas Boon. Their use of terminology was not identical, and I have sought to identify the essence of what they told the Inquiry, even if my use of certain terms would not commend itself to both of them.
[39] A simple faint is very common and by the age of 60, 30% or men and 40% of women are likely to have suffered a simple faint at least once. Fainting occurs more commonly from a standing position, but fainting whilst sitting is nevertheless quite common. Research from the United States of America has found that fainting is surprisingly common amongst drivers who have been sitting for long periods. People sometimes faint whilst seated in warm restaurants and in church. Fainting whilst lying down is very rare. From a purely medical perspective, a simple faint could occur when sitting down, but to be diagnosed as such there would generally need to be some identifiable provoking factor and some warning symptoms.
[40] Typically, before fainting people will feel a bit hot and sweaty, they may feel their heart racing and they feel a bit light-headed. Classically, nausea features, either beforehand or on recovery. A person may suffer these symptoms but not go on to black out, perhaps because of remedial action such as lying down or putting the head between the legs. Such an incomplete event is called a pre-syncope.
[41] A simple faint may be an episode of neurocardiogenic syncope, which might also be referred to as a reflex vasovagal syncope.
[42] A syncope is a transient loss of consciousness caused by a reduction in blood flow to the brain. There will be a loss of postural tone so that muscles go slack causing a person who is standing to fall to the ground. Syncope is entirely distinct from an epileptic seizure, one difference being that in a seizure, muscle tone will be retained.
[43] Where the cause of syncope is heart failure it will be referred to as a cardiac syncope. The other forms of syncope are essentially caused by a failure of the systems which the body uses to control heart beat and blood pressure. These are known as reflex syncope.
[44] A typical example of a simple faint is the soldier fainting whilst standing on parade in the heat for a prolonged period. The mechanism is believed to be that circulating blood pools in the legs and does not return to the heart so that the heart beats faster and harder to compensate for the lack of returning blood. Blood pressure falls. The body misinterprets the signals and triggers a reflex which causes a further drop in blood pressure and a slowing of the heart which reduces blood supply to the brain so that the soldier passes out and crumples to the ground. The reflex is mediated particularly through the vagus nerve, giving rise to the term vasovagal. After falling, the process reverses. Heart function returns to normal, the reflex switches off and recovery usually occurs quite promptly. Recovery from vasovagal syncope is generally slower than from a cardiac syncope. With vasovagal syncope, it is quite common to continue to feel unwell for some time afterwards.
[45] With vasovagal syncope, there are two components to the reduction in blood supply to the brain. One is the slowing of the heartbeat and the other is the opening up of the blood vessels (vasodilatation) which causes the drop in blood pressure. If the predominant problem is slowing of the heartbeat, it is known as cardio-inhibitory vasovagal syncope. If the predominant problem is a drop in blood pressure due to vasodilatation, it is vasodepressor syncope (which was indicated in Mr Clarke’s case). Where both processes are significantly involved, it is mixed vasovagal syncope.
The location of the accident
The following facts were proved in the first joint minute.
[46] Queen Street is a one-way undivided carriageway extending generally north and south and carries a high volume of pedestrian and northbound vehicular traffic. From the junction with Argyle Street to the south, the carriageway has two lanes for travel north expanding to three lanes after the junction with Ingram Street. To the east and west Queen Street is bordered by raised kerbs, footways and commercial premises beyond. Queen Street terminates at a traffic light (with pedestrian phase) controlled junction with George Square to both the east and north and St Vincent Place to the west.
[47] George Square is a one-way undivided carriageway extending on four sides around a central pedestrian area. The portion of George Square north of Queen Street has three lanes for northbound traffic and carries a high volume of pedestrian and vehicular traffic. To the west this area is bordered by a raised kerb, footway and commercial premises whilst to the east it is bordered by a raised kerb, footway and pedestrian area containing various monuments and benches for seating (although on 22 December 2014 the square itself contained Christmas carnival attractions and an ice rink). On the south aspect of George Square where it joins with Queen Street vehicles travel west before either turning right to travel north on George Square or continue west into St Vincent Place.
[48] George Square continues north and forms a traffic light (with pedestrian phase) controlled T- junction with West George Street joining from the west and becoming George Square whilst continuing east. To the north of the T-junction there is a vehicular access road allowing traffic to drop off and pick up passengers for Queen Street railway station. To the north of the T-junction is a raised kerb and footway leading to Queen Street railway station extending west and the Millennium Hotel extending east.
[49] The speed limit in Queen Street and George Square is 30 miles per hour.
[50] On 22 December 2014 the road surface at Queen Street and George Square comprised a bitumen/tarmac mix and was in a good state of repair. The condition of the road surface had no effect with regard to the incident to which this Inquiry relates (hereinafter referred to as “the incident”). At the time of the incident the weather was good; the road surface was damp; there was no evidence of any surface contaminant; it was daylight; street lighting was present and was unlit and visibility for road users was excellent.
[51] Travelling north from Argyle Street into Queen Street and approaching the locus of the incident drivers travel along a straight and level section of road and have a maximum potential view north in excess of 400 metres to Queen Street railway station and the Millenium Hotel. The driver of a large goods vehicle would have an enhanced view due to their elevated seating position in comparison to a car driver’s seating position. This view would also be dependent on the presence, size and proximity of any preceding and parked vehicles as well as the level of consciousness of the driver.
[52] Correspondingly, pedestrians on the west footway would have a maximum potential view south of an approaching large goods vehicle, such as the lorry, in excess of 400 metres. However this view would depend on which direction the pedestrian was facing at the material time and the presence, size and proximity of any obstructions.
Vehicle information
The following facts were proved in the first joint minute.
[53] The vehicle driven by Mr Clarke was a Glasgow City Council, green coloured, Leyland DAF Model FAG CF, large goods vehicle with registration number SB62 NKD.
[54] In 2012, GCC entered into a 4 year contract with Imperial Commercials to supply them with DAF HGV lorries. Imperial Commercials are responsible for supplying the DAF chassis. On receipt of the technical specification from GCC, Imperial Commercials sub contract to Tekbo Ltd to refit the vehicles as bin lorries. The lorry was legitimately sourced, converted, tested and supplied under the contract.
[55] Before the lorry was released to GCC it was fully inspected to ensure it had been modified according to the specifications provided. GCC specified the following additional safety features:
(i) Handbrake Interlock. This prevents the vehicle being driven or running away when the driver leaves the vehicle with the engine running.
(ii) Rear safety features. These prevent incidents in relation to the emptying of bins.
(iii) Monitor in cab. This allows the driver to see the back of the vehicle.
[56] The base DAF vehicle has a number of cab options. The lorry has a high roof line and space cab fitted. The space cab has been subsequently modified to enable a crew to be carried.
[57] The lorry was converted by Tekbo Ltd removing the front passenger seat along with the rear bed or beds and floor storage units. The cab was fitted with chequer plate anti-slip flooring, which covers not only the cab floor on the nearside but also the formed steps to the rear of the cab.
[58] The rear cab section, where the bed would have been originally fitted, had a bench seat fitted. The seat has the potential to carry four passengers. Each of the rear bench seat positions have a three point, inertia reel seat belt. The seatbelts were operative during the examination on 25 March 2015.
[59] The driver of the lorry sits in a standard seating area, the only noticeable difference being that there is a yellow barrier rail to the rear of the driving seat between it and the rear cab section, containing the crew seating. The driver seat has a three point seatbelt fitted.
[60] The bench seat had been tested and certified in line with European legislation applicable at the time.
[61] On 29 October 2014 European legislation came into force introducing mandatory testing of the bench seat mechanism for all new vehicles.
[62] On 8 May 2015 a vehicle of the same specification was sent to the Motor Institute Research Association (MIRA) for testing which took place on 17 June 2015. That vehicle passed the test and was deemed to be EC compliant.
[63] The barrier rail is 0.8 metres in height and extends 1.45 metres across the cab from the nearside. The nearside of the barrier has a 0.6 metre section that can be latched closed or folded over on itself to allow crew access. Where the barrier section is folded over on itself, the total height from the vehicle floor is 0.865 metres.
[64] The barrier rail was legitimately sourced and supplied. Its purpose was to provide the crew with a safe method of access when entering and egressing the vehicle. This is a repetitive task for the crew, in line with the primary purpose of the vehicle, and meets with Health and Safety Executive Guidance, HSG136. The barrier rail also provides the crew, when seated, with a grab handle to stabilise themselves should the vehicle move or jolt suddenly.
[65] On the nearside of the cab, in the vicinity of the nearside door, are grab rails designed to aid the crew members climbing into and out of the vehicle. These grab rails are complemented by the barrier rail extending onto the stepped area, thus providing the crew members with a safe exit/entry route out of and into the vehicle.
[66] Within the driver’s area is a set of remotely positioned control/monitoring systems for the refuse body and included within these controls is an emergency stop button. The fitment of an emergency stop button for the refuse body is a legislative requirement as the body is regarded as machinery, whereas the supporting vehicle has no requirement to comply with such legislation. The emergency stop button fitted had no link to the chassis or running gear of the underlying vehicle.
[67] As is standard to all road vehicles the lorry is fitted with a service brake (a foot brake) and a secondary braking system (a hand or parking brake) which in this case is actuated by a hand operated lever fitted to the dashboard at the driver’s left side. Application of the service brake causes the brake lights at the rear of the vehicle to be illuminated. Application of the secondary brake (hand brake) causes no such illumination.
[68] On the secondary/parking brake control, the horizontal distance, when the parking brake was off, between the tip of the parking brake lever and the rear of the vertical barrier post is 0.55 metres. The straight line distance from the top of the barrier rail to the tip of the parking brake lever is 0.71 metres. When the parking brake is in the applied position the latter distance increases to 0.76 metres.
[69] The lorry has an Allison automatic gearbox fitted. The driver’s controls consisted of three electronic selector switches: Drive (forward), Neutral and Reverse. Unlike a smaller passenger vehicle, there is no parking lock facility for the gearbox. In operation, even if a park function was available, it would not be expected that the gearbox would have been able to apply the park function.
[70] The lorry has an engine brake fitted. An engine brake is designed to be used in an “over-run” situation, i.e. no throttle applied, and is typically activated to provide slight retardation for the vehicle, most notably at higher engine/road speeds or in downhill situations. The engine brake on the lorry could be manually switched on and off. Its effect at low engine and road speeds would be minimal.
[71] The lorry is fitted with a diesel engine. Empirical testing by police officers in a DAF vehicle similar to the lorry showed that only moderate pressure needed to be exerted on the pedal to achieve significant rises in engine speed.
[72] As a result of the incident the lorry was damaged as described in the first joint minute, the relevant section of which is reproduced as appendix 3.
[73] There were no pre-collision defects that could have led to a loss of control of the lorry or increased the severity of the incident. The mechanical condition of the lorry was not a contributory factor in the incident.
[74] Imperial Commercials offer maintenance contracts for all vehicles supplied by them. The lorry was subject to that contract and it was, in line with European legislation, checked every six weeks. Once the checks were complete GCC would carry out an independent audit, in respect of the standard of the work. There are no mandatory requirements for an independent audit to be carried out.
Mr Clarke’s driving licences
[75] Mr Clarke has held a licence to drive both cars and large vehicles for most of his adult life. Prior to December 2014, he held full driving licences for vehicles in group 1 (which includes all cars and motor cycles) and group 2 (which includes large lorries (category C) and buses (category D)).
[76] As a group 2 driver, Mr Clarke required to renew his Large Goods Vehicle (LGV) licence every five years following his 45th birthday on 10 January 2002, in accordance with section 99 (1A) of the Road Traffic Act 1988 (RTA 1988). He did this by completing DVLA form D47 and undergoing a D4 medical examination in 2001, 2006 and 2011 prior to his 45th, 50th and 55th birthdays. All of the renewal applications were granted. Neither Mr Clarke nor any medical practitioner provided any further medical information relating to him to DVLA between December 2011 and 22 December 2014.
[77] The process involves the applicant completing form D47 with personal details and responses to a series of questions about eyesight, hearing and health. The applicant must sign a declaration to the effect that he has checked the details given; the information given is true so far as known to the applicant; and that he understands that it is a criminal offence which may lead to prosecution if false information is given or if there is a failure to provide information. There must be a medical examination, and the only specification in The Motor Vehicles (Driving Licences) Regulations 1999/2864 (MVDLR 1999), 10 (5) is that it must be performed by a qualified medical practitioner. The doctor must complete form D4 and the applicant must countersign and make a declaration as to the accuracy of the details given, so far as known. The signature also confirms the giving of consent for the disclosure of medical reports to the Secretary of State’s Medical Adviser.
Guidance to drivers
[78] DVLA exercises functions on behalf of the Secretary of State for Transport.
[79] DVLA issues general guidance for drivers. Until 2013 this was done through the publication of a hard copy guide, D100, which indicated that drivers should notify DVLA if they had ever had or currently had, amongst other conditions, fits or blackouts.
[80] Since 2013, guidance is to be found online on the DVLA website. The guidance outlines what is required of the driver and the likely consequences of failure to comply, and also sets out a list of examples of notifiable conditions. For some conditions, drivers are advised that they must notify DVLA; for others, drivers are advised that they need not notify.
[81] The section on “blackouts, fainting, syncope and driving” indicates that drivers should check with their doctor as to whether their blackouts, fainting or syncope affects their driving and report to DVLA if it does.
GP medical records
[82] By the 1980s, GPs would make and keep paper notes of consultations in a folder in the name of the individual patient. There would be a front page summary of significant medical events examples of which would be operations or heart attacks. Investigations which led to negative findings would be less likely to be entered in a summary although some doctors might include them. Mr Clarke’s current GP practice, Baillieston Health Centre, did not generally do so.
[83] A single simple faint is so normal an event that it would not necessarily be noted anywhere in GP notes. If there were recurrent episodes having an impact on lifestyle and employment, and which led to hospital investigations, these would be noted and might also be included in the summary.
[84] Baillieston Health Centre changed to a system of computerised notes in 2005. The task of transferring the clinical summary was undertaken by medical staff. Since 2005, all letters from hospitals were scanned and included in the patient’s computerised notes. In his individual surgery, a GP could access the patient’s electronic record on a computer. The old paper records were kept in a records room at the practice although for many other practices the old records are archived and stored elsewhere.
Mr Clarke’s medical history prior to 22 December 2014
[85] Medical records disclose that Mr Clarke attended with his GP from the early 1980s onwards on many occasions in connection with stress, anxiety and symptoms of depression and on some occasions was prescribed medicine, often for sedative effect. There are references to him getting headaches when driving. Some of his anxiety was associated with periods of work as a bus driver. On 9 December 1987 it is noted that he stopped work as a bus driver due to “nerves.” There are references to stress and anxiety in 2008 and 2009 which are the last entries of that kind.
[86] Particular entries in his medical records were explored in more detail in the course of the evidence:
- 30/06/1976 GP Notes “Dizzy when bending – intermittent for 2 [months]…feeling tired.”
- 15/06/1977 GP Notes “Vertigo-probably mild heatstroke.”
- 10/08/1977 GP Notes “Vertigo - waxy ears.”
- 17/08/1977 GP Notes "Persistent dizziness ... changes …Wax in ears”
- 16/10/1987 GP Notes “Dizziness for a few moments when bending to tie laces or painting ceiling. Headaches afterwards. Probably just positional. [Reassured]. Ears √”
- 08/12/1988 GP Notes “Dizziness on standing up quickly.”
His sitting and standing blood pressure was noted. It was noted that his mother died recently and he drank 20 pints Thursday to Sunday. He was advised to reduce his consumption of alcohol and increase his fluid intake.
- 16/03/1989 GP Notes “Still has postural giddiness.”
- 18/08/1989 “Vasovagal attack at work 2 days ago. O/E BP 140/80 …Reassured”
- 25/02/1994 GP Notes “Had episode while driving bus of feeling ‘dizzy’ – had ? pain in chest & ? palpitations. O/E BP 130/80. [heart rate] irregular. For ECG & referral. Advice on caffeine consumptions. See on 3rd March –Chest Tightness”
[87] The last episode was entered in the clinical summary sheet in the paper medical notes but was not included in the equivalent document in the computerised notes.
[88] After the consultation on 25 February 1994, Mr Clarke was referred by his GP to the Department of Cardiology at Stobhill Hospital, Glasgow and was examined on 23 March 1994. In a letter dated 28 May 1994 the cardiology registrar who saw Mr Clarke (Dr M Malekianpour) stated:
“...I had the impression that he has two types of symptoms which are largely unrelated. The first one is that of chest tightness with no radiation for the past year which can come on exertion or if he is anxious at rest. He normally has relief from this after 10-15 minutes. He does not have any other cardiovascular symptoms. He also complained of intermittent dizziness for the past 4 years. This normally occurs on exertion, and is not related to pre-syncope. Again, this resolves after about 10-15 minutes, and he normally finds that he gets dizzy if he is in a warm environment. The dizziness and chest tightness do not occur at the same time and in fact he had relief from the dizziness for about a year in the past 4 years, however, this has recurred, at least for the past 18 months. He does not have any other symptoms attributable to middle ear disease, and there is no other past medical history of note. ...My impression was that his chest tightness may represent angina. I am not quite sure about the cause of his dizziness...I arranged for him to have an echocardiogram which was normal...an exercise tolerance test...no chest pain or ECG changes....we will assess his progress when he is next seen at the clinic. At that stage we may arrange other investigations to elucidate the cause of his dizziness.”
[89] Mr Clarke was reviewed at the cardiology clinic on 27 May 1994 by Dr J Faccenda, a Senior House Officer whose letter of that date to Mr Clarke’s GP includes:
“...All investigations were normal. We have not proven any cardiac cause for his chest tightness, which has not recurred since he was last seen in the clinic. His dizziness has also gone away. He managed to the end of Stage 4 on the full Bruce protocol, and there is nothing to prevent him getting his PSV licence back. I have told him that he should have informed the DVLC when he was under investigation for ?angina. I have discharged him from the clinic...”
[90] Further entries of interest in the GP notes include these:
- 10/07/2003 GP Notes “[complaining of] dizziness, dullness of hearing [observed on examination] wax both ears …drops given...dizziness, stop tabs 2/7 ago?, episodes lessening. Drives OIL TANKER, do not drive meantime. Appt Mon for review.”
- 14/07/2003 GP Notes ““Dizziness [reducing], still dull of hearing…Ears (L) canal…wax…do not syringe use almond oil...see practice nurse Friday (Flying to Spain Monday 21)”
- 06/08/2009 GP Notes “lethargy 2/52, occas vertigo with sudden head movements, no recent viral illness. bp cvs ok. bloods and review”
- 20/09/2013 GP Notes “"Tired all the time…no features to suggest depression or hypothyroidism, working full time, of many years. occasional episodes of feeling dizzy on standing for prolonged periods. no falls, no vertigo or ENT symptoms...Lifestyle counselling lose weight, blood work Sep 12 ok, will await letter from Pre Op clinic as well. symptoms diary and return if ongoing concerns."
Mr Clarke was occasionally suffering episodes of dizziness on prolonged standing shortly before 20 September 2013.
Mr Clarke’s representations prior to April 2010
[91] On 29 November 2001 Mr Clarke completed and signed Form D47 for submission to DVLA as part of his renewal application for LGV and bus licences. There is a declaration directly above the signature box that the applicant has checked the details he has given and that they are correct to the best of his knowledge. On Form D47 Mr Clarke made declarations that he had never had and did not suffer from fits or blackouts, severe and recurrent disabling giddiness, or serious psychiatric illness or mental ill health. A medical report in Form D4 signed by Dr. L. Copeland of Springburn Health Centre, his then GP, accompanied the application. The ECG tests in 1994 were referred to and Dr Copeland explained on form D4 that the ECG testing had found no evidence of any ischaemic changes.
[92] Given the qualification to giddiness as being severe and disabling, I am not convinced that Mr Clarke’s answer in this respect was inaccurate or dishonest. Given the qualification “serious” which precedes psychiatric illness or mental ill health, I am not convinced that Mr Clarke’s answer in this respect was inaccurate or dishonest.
[93] The answer ‘no’ to “fits or blackouts” given by Mr Clarke to question 2 at section 5 A on form D47, “Have you ever had or do you suffer from any of these conditions?” and the entry in the GP notes for 18 August 1989 which referred to a vasovagal attack at work are contradictory and Mr Clarke’s answer in that regard was not accurate. A vasovagal attack at work is something which a person would be expected to remember, and whilst in this instance it is difficult to be sure, I consider it more likely than not that Mr Clarke deliberately omitted reference to that episode.
[94] On 1 December 2006 Mr Clarke again completed and signed a Form D47 in which he declared that he had never had and did not suffer from the following conditions: fits or blackouts; repeated attacks of sudden disabling giddiness; or serious psychiatric illness or mental ill health. He signed the declarations as to accuracy and awareness of the consequences of providing false or incomplete details.
[95] Mr Clarke was medically examined by Dr McKaig, a GP at Baillieston Health Centre, who completed a medical report in Form D4. Dr McKaig performed the necessary medical examinations and went over the answers in form D47, even though some of them had already been filled in by the patient.
[96] Dr McKaig accessed the computerised clinical summary and he did not see anything that required a positive answer. When he was asked to consider the notes for July 2003, he did not think that these required a positive answer to the question about “repeated attacks of disabling giddiness” in D47, or “sudden and disabling dizziness/vertigo within the last year with a liability to recur” in D4.
[97] Dr McKaig could have accessed the paper medical notes for entries prior to 2005 which were held by his practice but it can be inferred that he did not do so. He did not pick up on the inconsistency between the answer ‘no’ to “fits or blackouts” given by Mr Clarke to question 2 at section 5A on form D47, “Have you ever had or do you suffer from any of these conditions?” and the entry in the GP notes for 18 August 1989 which referred to a vasovagal attack at work.
[98] Mr Clarke’s answer in that regard was not accurate. For the same reasons which I explained in para 93, I consider it more likely than not that Mr Clarke deliberately omitted reference to that episode.
[99] On 18 September 2008 Mr Clarke completed and signed a health declaration as part of the recruitment process to obtain employment with First as a bus driver. He stated that he had never suffered from: fainting, blackouts, unconsciousness, dizziness or vertigo; depression or anxiety; he had never left previous employment for health reasons; he had never had any period of absence from work in the last eight years; and he had never had an ECG. More information would have been sought had Mr Clarke declared that he had previously suffered from dizziness, vertigo and that he had fainted at work. A false declaration would have been taken very seriously by First had it been discovered.
[100] Mr Clarke plainly had suffered from dizziness on several occasions, consistently so in 1994 and for some time previously. In 2003 on account of dizziness he got medical advice not to drive, even if only for a few days. He had many documented instances of depression and anxiety and he had left employment as a bus driver for health reasons, recorded in the GP notes for 1987 as “nerves.” Whilst that was in 1987, since he was once again applying to be a bus driver, I do not believe that he forgot about that. Mr Clarke’s negative response to some of these questions is not explicable by anything but deliberate dishonesty. I conclude that he was deliberately concealing medical conditions which his prospective employer considered relevant. He was prepared to lie about his health to get a job as a bus driver.
Mr Clarke’s employment as a bus driver, 2008-2010
[101] Mr Clarke commenced employment as a bus driver with First on 15 August 2008 and left on 28 December 2010 by which time he had already been interviewed and had been accepted by GCC for employment as a minibus driver subject to references and a medical questionnaire.
[102] In the course of his employment with First, Mr Clarke had a number of absences and was subject to a final warning in November 2009. He was absent from work between 11 and 21 November 2009, apparently with stress. In 2010, he was absent between 25 February and 6 March on account of a “locked knee.” He was absent again for almost 4 weeks following the incident on 7 April 2010 until he returned to work at the beginning of May.
[103] On 26 December 2010, which Mr Clarke had decided would be his final day at work, he was alleged to have been running his bus several minutes early at several stops rendering him liable to instant dismissal. He was suspended and due to attend a disciplinary hearing on 28 December 2010. It never took place as Mr Clarke left his employment and did not attend for the hearing. He was deemed to have resigned under suspension. His manager, Francis McCann, knew that Mr Clarke was leaving to work for GCC.
The events of 7 April 2010
[104] At about 9.35 am on 7 April 2010 Mr Clarke lost consciousness whilst sitting at the wheel of his bus at a bus stop on Paisley Road West for a period lasting between a few seconds and two minutes. Either before or afterwards he caused his passengers to leave the bus and he drove to a bus stop where he met a First bus inspector, Mr John Stewart, and told him that he had blacked out for a couple of minutes. He then became unwell again which led to Mr Stewart summoning an ambulance. Mr Clarke was checked over by paramedics who performed an ECG which gave normal results. Mr Clarke declined to go to hospital.
[105] Mr Clarke had suffered an episode of neurocardiogenic syncope.
[106] Mr Clarke was sent home from work and arranged a same day appointment with Dr McKaig. He told Dr McKaig that he had fainted in a warm canteen whilst queuing for food, implying that he had been standing.
Mr Clarke’s representations in April 2010
[107] Mr Clarke deliberately misled Dr McKaig as to the location and nature of what had happened to him. He had lost consciousness whilst sitting on a bus and it was not true that this event had occurred in a canteen as he told Dr McKaig.
[108] On 8 April Mr Clarke deceived Dr Lyons, a GP who provided occupational health (OH) services to First, when he led him to understand that he had not lost consciousness. I infer that he did so in order to downplay the incident as far as he felt able to, anticipating that Dr Lyons may have access to information from Mr Stewart.
[109] On 22 April, Mr Clarke deceived Dr Langan, of Baillieston Health Centre, in giving him to understand that he had fainted in a canteen. He maintained the fiction he had first presented to Dr McKaig in order that a favourable report, or the least unfavourable report, would be given by Dr Langan to First.
[110] Mr Clarke deceived all three doctors in the hope that he would be able to return to work sooner rather than later so that he would not lose his job with First. Mr Clarke’s attendances with Dr Lyons and Dr Langan gave rise to correspondence between them. Dr Langan did not seek clarification from Dr Lyons as to the location of the faint, despite receiving a letter referring to Mr Clarke fainting on a bus. Dr Langan was induced by Mr Clarke’s false representations to advise Dr Lyons that Mr Clarke had suffered a simple faint. None of the doctors who saw Mr Clarke advised him to notify DVLA of this event and he did not do so.
Mr Clarke’s employment with GCC and his representations after April 2010 but before December 2014
[111] On 14 July 2010 Mr Clarke completed and signed an application form for a job as a minibus driver with GCC declaring that he was “fit” and “very reliable”. He was successful at an interview on 10 September 2010 at which he produced both of his driving licences, which fact was recorded. Before taking up employment he was required to identify two referees. He nominated First and DHL, both previous employers for whom he had worked as a driver. I infer that, at least by 25 March 2011, GCC did receive satisfactory references for Mr Clarke. On the basis of my findings in paras 102-104, a true, accurate and fair reference from First would not have been satisfactory to GCC.
[112] Mr Clarke also had to complete and submit an online BUPA Health Declaration which he did on 15 December 2010. I infer that in doing so, he declared that: he had not had any medical condition that he believed to have been caused, or made worse, by his work; he did not have any medical condition of which first aiders or occupational health in the workplace should be made aware; he had not had any medical condition that should be considered by an OH professional; he had only been absent from work for 7 days in the last two years due to sickness; he had never suffered from balance problems, dizziness or light-headedness; and he had never suffered from stress, depression, anxiety or difficulty sleeping.
[113] Most of these declarations were inaccurate and I conclude that Mr Clarke lied. His history of absences at First in 2009 and 2010 is not something which he could have forgotten and the fact that he fainted whilst at the wheel of a bus in April 2010 was plainly something that first aiders in the work place and OH should be made aware of.
[114] Mr Clarke applied for promotion to the position of HGV driver (gritting lorries) in 2011. In that connection, on 1 December 2011 he completed and submitted an online BUPA Health Declaration. I infer that he declared that: he had not had any medical condition that he believed to have been caused, or made worse, by his work; he did not have any medical condition of which first aiders or OH in the workplace should be made aware such as vertigo; he had not had any medical condition that should be considered by an OH professional such as stress related illness or depression; he had not been absent from work at all in the last two years due to sickness; and he had never suffered from a disorder affecting the hands or arms.
[115] Once again I conclude that most of these answers were lies, told because Mr Clarke wanted promotion to a better job.
[116] On 6 December 2011 Mr Clarke completed a BUPA OH Questionnaire as part of an employment screening process to ascertain whether he was fit to drive an HGV for GCC. He failed to disclose his relevant medical history. He further declared that he had never suffered from: balance problems, dizziness or light-headedness; trouble with nerves, stress, depression, anxiety or difficulty sleeping. He declared that he had never had hospital tests or treatment; he had never left a job for medical reasons; he had never had an illness caused by his work; he had never been away from work for two weeks or more due to illness in the last two years; and he did not suffer from any other health problem which was relevant to his job as an HGV driver.
[117] I conclude that most of these answers were lies, told because Mr Clarke wanted promotion to a better job.
[118] In December 2011 Mr. Clarke submitted another application for renewal of his Group 2 licence. Form D47P, was signed by him and dated 6 December 2011. He indicated that he had never had and did not suffer from: fits or blackouts; repeated attacks of sudden disabling giddiness; serious psychiatric illness or mental ill health.
[119] The medical report in Form D4 which accompanied the application was dated 6 December 2011 and was signed by Dr. Joanne Willox. Dr. Willox was employed by BUPA, and the medical examination of Mr. Clarke was carried out by her in terms of a contract between BUPA and GCC. It was advantageous for an employee to attend with GCC’s OH provider as this could be done during working hours and he did not have to pay the fee which he would have to pay his GP.
[120] Mr Clarke also signed Form D4 on 6 December 2011, making declarations that: he had no history of blackouts or impaired consciousness in the last five years; and he had no medical condition that could affect safe driving.
[121] In declaring on forms D47 and D4 that he had never suffered from fits or blackouts, Mr Clarke deliberately concealed relevant information from DVLA, not least in relation to the incident of 7 April 2010.
DVLA – fitness to drive
[122] The Secretary of State for Transport acting through the medical advisers at the Drivers' Medical Group, DVLA, has the responsibility to ensure that all licence holders are fit to drive. The statutory underpinning in this regard is set out in this way in DVLA’s publication, the “At a glance Guide to the Current Medical Standards of Fitness to Drive.” (“at a glance”).
“The legal basis of fitness to drive is the 2nd EC Directive on driving licences which came into effect in the UK in January 1997, the Road Traffic Act 1988 and the Motor Vehicles Driving Licences Regulations 1999 and particular reference is made to sections 92 and 93 of the Road Traffic Act 1988.”
[123] It is the statutory duty of the holder of a driving licence to notify DVLA of any medical condition which may affect driving. The duty is primarily on the licence holder and it is only in exceptional circumstances where a doctor is entitled to make a notification. DVLA requires the notification to be in writing.
[124] This self-reporting system is heavily dependent on the candour of drivers and the alertness to fitness to drive issues of the doctors whom they consult.
[125] DVLA alone will determine if a licence is to be revoked or renewed. Once it receives a notification, it will send out a consent form to the driver and proceed to ingather medical information. It will contact the driver’s GP and may commission testing at the driver’s local hospital. In most situations, the licence holder can continue to drive whilst investigation and consideration is ongoing but there are certain conditions, epilepsy being one example, where DVLA can immediately revoke a licence before further inquiry.
[126] On receiving notification, DVLA will send a questionnaire to the driver seeking detailed medical information including details of the driver’s GP or treating doctor. Consent is sought from the driver to obtain information from the doctor, all of which is done in writing on standard forms.
[127] DVLA handles approximately 650,000 cases involving medical fitness to drive issues each year. Those cases are considered by a team of 22 qualified medical advisers (with a further adviser currently undergoing training) assisted by non-medically qualified staff who are guided by a detailed and highly prescriptive set of operating instructions.
[128] The medical advisers do not themselves examine or treat holders of, or applicants for, driving licences. DVLA determines issues of medical fitness to drive on the basis of information provided by licence holders or applicants; medical information and opinions provided by qualified medical practitioners who have examined and/or treated those licence holders or applicants; and in accordance with the guidance provided by the Secretary of State’s honorary medical panels.
[129] There are six panels, each having responsibility for one of the following medical specialisms:
(i) diabetes mellitus;
(ii) neurology;
(iii) vision;
(iv) drugs and alcohol;
(v) cardiovascular disease; and
(vi) psychiatry.
[130] The medical members of the panels are appointed by the Secretary of State and are specialists in their particular field of national, and international, renown. Their guidance is encapsulated in “at a glance.” The panels are consulted by DVLA in relation to particular cases.
[131] “At a glance” covers fainting within the neurology section.
[132] The only medical issues affecting Mr. Clarke which were disclosed to DVLA before 22 December 2014 were: that he had undergone an ECG in 1994 with a satisfactory result; that he had a mild squint in his left eye which was only present when tired; that he suffered from heartburn; and that he suffered from gout. None of those issues or conditions raised any concern as to Mr. Clarke’s medical fitness to drive.
[133] Accordingly, there was no information which was disclosed to or known by DVLA before December 2014 which ought reasonably to have put DVLA on inquiry as to Mr. Clarke’s medical fitness to drive. There was no reasonable precaution which could have been taken by DVLA which might have prevented the events of 22 December 2014.
“At a glance Guide to the Current Medical Standards of Fitness to Drive”
[134] DVLA produces twice yearly an updated version which is accessible online to the general public. The clarity of the guidance is regularly reviewed. There is input from a lay panel member giving a patient’s perspective, user groups will be consulted and DVLA has a “Plain English” department.
[135] The introduction to “at a glance” supposes that doctors will advise their patients whether or not they should inform DVLA of their medical condition and what the outcome of medical inquiries is likely to be. All of the doctors who were asked accepted that they were subject to this twofold professional duty and it may be that it is derived from guidance issued by the General Medical Council which is set out at page 4 of “at a glance.” In that part of the guidance, doctors are encouraged to ensure that patients understand the potential of a condition to impair their ability to drive. A doctor should report a relevant condition to DVLA if the driver cannot understand medical advice and the example of a patient with dementia is given. Doctors are also advised that if they learn that a patient is driving against their advice, and cannot be persuaded to self-report to DVLA, they should report the relevant medical condition directly to DVLA.
[136] In the introduction to “at a glance,” it is stated:
“It is also emphasised that this booklet is for use as guidance only. Whilst it provides some idea of the anticipated outcome of a medical enquiry, the specific medical factors of each case will be considered before an individual licensing decision is reached."
[137] “At a glance” summarises licence groups in this way and sets out the reasons for their differential treatment:
“Group 1 includes all cars and motor cycles.
Group 2 includes large lorries (category C) and buses (category D). The medical standard 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.”
[138] “At a glance” advises doctors “to document formally and clearly in the notes the advice that has been given.” It makes plain that doctors can seek advice from DVLA in writing or on a telephone helpline. The version which was current in April 2010 was reproduced as Crown production 72. The section on “loss of consciousness/loss of or altered awareness” (LOC, etc.) featured heavily in evidence and submissions and I set it out below:
[139] Each page of “at a glance” had a headnote in these terms:
“The applicant or licence holder must notify DVLA unless stated otherwise in the text.”
[140] Page 7 of the guidance stated:
“LOSS OF CONSCIOUSNESS/LOSS OF OR ALTERED AWARENESS
** Excluding Cough Syncope** (See Chapter 7)
A full history is imperative to include pre-morbid history, prodromal symptoms, period of time unconscious, degree of amnesia and confusion on recovery.
A neurological cause, for example, epilepsy, SAH [sub-arachnoid haemorrhage], can often be identified by the history, examination and the appropriate referral made. The relevant DLVA guidelines will then apply.
50% of all cases have a cardiac cause and again, these can be determined by the history, examination and ECG. Investigate and treat accordingly and use the relevant DVLA guidelines.
The remaining cases can be classified under five categories in the FOLLOWING TABLE
| NEUROLOGICAL DISORDERS | GROUP 1 ENTITLEMENT ODL-CAR M/CYCLE | GROUP 2 ENTITLEMENT VOC-LGV/PCV |
| 1.Simple faint Definite prevocational factors with associated symptoms and which are unlikely to occur whilst sitting or lying. Benign in nature. If recurrent, will need to check the “3Ps” apply on each occasion (provocation/prodrome/postural) (If not see number 3 below) | No driving restrictions. DVLA need not be notified. | NB Cough syncope, see Chapter 7 No driving restrictions. DVLA need not be notified. |
| 2. Loss of consciousness/loss of or altered awareness likely to be unexplained syncope and low risk of recurrence. These have no clinical evidence of structural heart disease and a normal ECG. | Can drive 4 weeks after event. | NB Cough syncope, see Chapter 7 Can drive 3 months after event. |
| 3. Loss of consciousness/loss of or altered awareness likely to be unexplained syncope and high risk of recurrence. Factors indicating high risk: (a) abnormal ECG (b) clinical evidence of structural heart disease (c ) syncope causing injury, occurring at the wheel or whilst sitting or lying (d) more than one episode in previous six months. Further investigations such as ambulatory ECG (48hrs) echocardiography and exercise testing may be indicated after specialist opinion has been sought. ** for Pacemakers see Chapter 2 | Can drive 4 weeks after event if the cause has been identified and treated. If no cause identified, licence refused/revoked for 6 months. | NB Cough syncope, see Chapter 7 Can drive 3 months after the event if the cause has been identified and treated. If no cause identified, then licence refused/revoked for one year. |
| 4. Presumed loss of consciousness/loss of or altered awareness with seizure markers. This category is for those where there is a strong clinical suspicion of a seizure but no definite evidence. The seizure markers act as indicators and are not absolutes: -Unconsciousness for more than 5 minutes - amnesia longer than 5 minutes -injury -tongue biting -incontinence -remain conscious but with confused behaviour -headache post attack | 6 months off driving from the date of an episode of loss of consciousness/loss of or altered awareness. However, if a person has a previous history of epilepsy, or a solitary seizure, 12 months’ freedom from any further episode of loss of consciousness with seizure markers must be attained. If a person suffers recurrent episodes of loss of consciousness with seizure markers, 12 months’ freedom from such episodes must be attained. | 5 years off driving from the date of an episode if the licence holder has undergone assessment by an appropriate specialist and no relevant abnormality has been identified on investigation, for example EEG and brain scan, where indicated. |
| 5. Loss of consciousness/loss of or altered awareness with no clinical pointers. This category will have had appropriate neurological and cardiac opinion and investigations but with no abnormality detected. | Licence refused/revoked for 6 months | Licence refused/revoked for 1 year” |
[141] The “3Ps”are provocation, prodrome and posture. Provocation refers to a factor which may trigger fainting such as standing for a long period or shock. Prodrome refers to symptoms experienced in advance of an episode which may serve as a warning that it is about to happen. Feeling warm, nauseous or light-headed would be examples. “Postural” is included because it is generally more common to faint whilst standing as opposed to sitting and fainting whilst lying down is very rare. It is well known that to get up quickly from a lying or sitting position may induce a faint or at least a feeling that one may faint.
[142] The reference to “benign” in box 1 encompasses a situation where there is no underlying pathology or illness which is causing loss of consciousness.
[143] A further box within the category of neurological disorders was in these terms:
| LIABILITY TO SUDDEN ATTACKS OF UNPROVOKED OR UNPRECIPITATED DISABLING GIDDINESS Eg Meniere’s disease. | Cease driving on diagnosis. Driving will be permitted when satisfactory control of symptoms is achieved. If remains asymptomatic, till 70 licence restored. | Licence refused or revoked if condition sudden and disabling. Consider underlying diagnosis and if likely to cause recurrent attacks, must be symptom-free and completely controlled for 1 year from last attack before re-application. |
[144] At page 4 of “at a glance,” it was stated:
“Important Note.
Throughout the publication, reference is made to notification not being required where specified. For these conditions and others not mentioned in the text this is generally the case but very rarely, the conditions may be associated with continuing symptoms that may affect consciousness, attention or the physical ability to control the vehicle. In these rare instances, the driver should be advised to report the condition and symptoms of concern to DVLA.”
[145] Changes were made to the LOC etc. section of the guidance in 2011 and 2012. Its current formulation, which remains as it was at 22 December 2014 and throughout 2015, is in these terms.
“The remaining cases can be classified under six categories in the following table.
| NEUROLOGICAL DISORDERS | GROUP 1 ENTITLEMENT ODL-CAR M/CYCLE | GROUP 2 ENTITLEMENT VOC-LGV/PCV |
| 1. Reflex Vasovagal Syncope Definite provocational factors with associated prodromal symptoms and which are unlikely to occur whilst sitting or lying. Benign in nature. If recurrent, will need to check the “3 P’s” apply on each occasion (provocation/prodrome/postural). (If not, see number 6 below). | No driving restrictions. DVLA need not be notified. | No driving restrictions. DVLA need not be notified. |
| 2. Solitary loss of consciousness/loss of or altered awareness likely to be unexplained syncope but with a high probability of reflex vasovagal syncope. These have no clinical evidence of structural heart disease and a normal ECG. | No driving restrictions DVLA need not be notified | Can drive 3 months after event. |
| 3. Solitary loss of consciousness/loss of or altered awareness likely to be cardiovascular in origin (excluding 1 or 2) Factors indicating high risk: a. abnormal ECG b. clinical evidence of structural heart disease c. syncope causing injury, occurring at the wheel or whilst sitting or lying Further investigation such as ambulatory ECG (48hrs), echocardiography and exercise testing may be indicated after specialist opinion has been sought. ** for Pacemakers see Chapter 2 | Licence refused/revoked for 6 months if no cause identified. Can drive 4 weeks after the event if the cause has been identified and treated. | Licence refused/revoked for 12 months if no cause identified. Can drive after 3 months after the event if the cause has been identified and treated. |
| 4. Solitary loss of consciousness/loss of or altered awareness with seizure markers. This category is for those where there is a strong clinical suspicion of a seizure but no definite evidence. Factors to be considered: - without reliable prodromal symptoms - unconsciousness for more than 5 minutes - amnesia longer than 5 minutes – injury - tongue biting - incontinence - remain conscious but with confused behaviour - headache post attack | 6 months off driving from the date of an episode of loss of consciousness/loss of or altered awareness. If a person has a history of epilepsy, an isolated seizure or a loss of consciousness/loss of or altered awareness with seizure markers within the preceding 5 years, then a period of 1 years’ freedom from any such events must be demonstrated before being considered eligible to drive. | 5 years off driving from the date of an episode if the licence holder has undergone assessment by an appropriate specialist and no relevant abnormality has been identified on investigation, for example EEG and brain scan, where indicated. If a person has a history of epilepsy, an isolated seizure or a loss of consciousness/loss of [or] altered awareness with seizure markers within the preceding 10 years then a period of 10 year’s freedom from any such events must be demonstrated before being considered eligible to drive. |
| 5. Solitary loss of consciousness/loss of or altered awareness with no clinical pointers. This category will have had appropriate neurological and cardiac opinion and investigations but with no abnormality detected. | Licence refused/revoked for 6 months. | Licence refused/revoked for 1 year. |
| 6. Two or more episodes of loss of consciousness/loss of or altered awareness without reliable prodromal symptoms. | If the episodes have been within the last 5 years then licence revoked or refused for 12 months or until the risk has been reduced to [less than] 20% per annum. | If the episodes have been within the last 10 years then licence revoked or refused for 10 years or until the risk has been reduced to less than 2% per annum. |
[146] It can be seen that a number of changes were made between 2010 and 2014. The panel instructed the changes because of a perceived lack of clarity within the guidelines and not on the basis of any change in medical knowledge.
[147] In box 1, "simple faint" was replaced with the term "reflex vasovagal syncope" and if the 3Ps are not present, the doctor is directed to box 6 as opposed to box 3. The change of terminology was recommended in March 2011 as a result of a group of cases which highlighted that the guidelines had been open to unduly wide interpretation.
[148] Box 2 now relates to a solitary event and "low risk of recurrence" was replaced with "unexplained syncope but with a high probability of reflex vasovagal syncope." For a group 1 licence holder, DVLA need not be notified.
[149] In box 3, the wording, "likely to be cardiovascular in nature excluding 1 or 2", has replaced ‘likely to be unexplained syncope and high risk of recurrence.” The word "solitary" is introduced to qualify the event under consideration. Despite the removal of the term “high risk” from the opening sentence of box 3, it goes on to refer to, “Factors indicating high risk.” Factor (d) is not reproduced in box 3 of the current guidance, but that is because it is subsumed in the new box 6.
[150] The word solitary was added to box 5.
[151] Box 6 was introduced in May 2012 following a particular case involving recurrent, unexplained, undiagnosed episodes of syncope without a reliable prodrome. The reliability of prodrome in advance of loss of consciousness is particularly significant for safe driving.
[152] Initially, box 6 was introduced with 1 and 5 year periods of revocation but this was subsequently changed to 1 and 10 years, subject to a qualification relating to probability of recurrence below a threshold of 20% for group 1 and 2% for group 2 licence holders. Those changes were made on account of a recognition that there could be a significant period of time during which a further episode of loss of consciousness may arise.
Mr Clarke’s representations after the accident on 22 December 2014
[153] Given the medical evidence which I heard, and the traumatic circumstances in which he regained consciousness, I am not persuaded that anything said by Mr Clarke as he was assisted and treated at the scene should be viewed as an attempt to conceal his past medical history.
[154] On 22 December 2014 at about 7.45pm, Mr Clarke was examined by Dr Elizabeth Clarke within the Accident and Emergency Department of the Western Infirmary Hospital, Glasgow. On being asked if he had ever suffered a similar experience previously he said that he had not.
[155] Given the events of 7 April 2010 and the lengths which Mr Clarke went to in order to conceal them and play them down both at the time and afterwards, I do not believe that Mr Clarke had forgotten or misunderstood their relevance. Mr Clarke lied to Dr Clarke.
[156] On 23 December 2014 at about 9.20am Dr Malcolm Shepherd examined Mr Clarke. On being asked if this had ever happened to him before, Mr Clarke said that in 2004 he had been driving a bus and had suffered a panic attack which caused him to pull the bus over and gave no further information.
[157] The evidence does not disclose whether there was such an event, but to the extent that the answer omits reference to 7 April 2010 and the real nature of that event, it was untrue.
[158] On 24 December 2014 at about 9.20am Dr John Paul Leach examined Mr Clarke. On being questioned on his medical history, Mr Clarke advised Dr Leach that he had no history of loss of consciousness. He said that there was an episode in 2008 where he felt shivery but that he did not lose awareness, and that an ambulance had been called but that he did not go to hospital. Dr Leach then recorded in the medical notes in relation to this disclosure that there was no loss of consciousness.
[159] It is possible that Mr Clarke forgot the year in which the event happened but insofar as he denied losing awareness, he lied to Dr Leach.
[160] On 13 February 2015 Mr Clarke told Professor Rankin there had been a previous incident when he was a bus driver in 2010 where he became unwell whilst driving a bus. This is the first record of a precise reference to this event being made by Mr Clarke after the fatal incident on 22 December. Again, he denied having lost consciousness which was a lie.
Mr Clarke’s interaction with DVLA in 2015
[161] The history of Mr Clarke’s entitlement to hold group 1 and group 2 driving licences after 22 December 2014 was conclusively proved in a section of the third joint minute which is reproduced as appendix 5. Set out below is a brief chronology, taken from those proved facts and other facts derived from the evidence of witnesses and documents.
[162] On 7 January 2015 Mr Clarke surrendered his licences to the police who notified DVLA in writing that there was a diagnosis of epilepsy so that the licences were revoked on 8 January.
[163] On 13 February 2015 Mr Clarke phoned DVLA to advise that he had a diagnosis of another condition. He did not have a fit on 22 December 2014; it was some kind of syncope. Mr Clarke said he would send in evidence to DVLA.
[164] Also on 13 February 2015, Mr Clarke had been seen by Professor Rankin who reported in his letter of 6 May 2015 that, “When I spoke to him, he had accepted that he would not return to work as a lorry driver.” Professor Rankin had told Mr Clarke in that meeting that, in his opinion, Mr Clarke should not drive a heavy goods vehicle.
[165] On 19 February Dr Gillian Simpson of Baillieston Health Centre wrote to DVLA to advise that Mr Clarke had not suffered a seizure but that he had a diagnosis of neurocardiogenic syncope.
[166] On 27 February Mr Clarke phoned DVLA inquiring about progress.
[167] On 10 March 2015 DVLA wrote to Dr Simpson inviting her to complete a medical questionnaire form Fep 2 and to submit any further relevant information. This did not prompt disclosure to DVLA of the events of 7 April 2010.
[168] On 13 March Mr Clarke phoned DVLA inquiring about progress.
[169] On 26 March, in response to a further phone call to DVLA, Mr Clarke was sent an application form for his group 1 licence which was completed on 2 April.
[170] On 2 April Mr Clarke phoned DVLA to inquire if he could now apply for a vocational licence and in response DVLA sent him an application form for his group 2 licence. Mr Clarke completed it on the same date.
[171] On 10 April Mr Clarke phoned DVLA to reiterate that he had not suffered a seizure in connection with applying for a vocational licence.
[172] On 10 April Mr Clarke completed and signed DVLA Form Fep 1V, medical questionnaire, in which he ticked the box on page 4 to confirm that his medical condition related to blackout(s)/altered level of consciousness and on page 6 completed the date for “First event” as 22/12/2014 and for “Last event” he entered the word “none.” He signed the form at page 7 under a declaration that to the best of his knowledge and belief the details were correct and that he understood that it is a criminal offence to make a false declaration to obtain a driving licence which can lead to prosecution. Mr Clarke did not disclose the incident of 7 April 2010.
[173] On 28 April, DVLA wrote to Mr Clarke to say that on the information received, which included a letter[2] from Dr Freel to Mr Clarke, Mr Clarke met the medical standards and issued group 1 and group 2 licences.
[174] On 25 June Mr Clarke was advised by DVLA that his licences would be revoked. DVLA records suggest that on 25 June Mr Clarke’s case was reviewed, “In light of detailed medical notes received from FAI process.” On 26 June DVLA confirmed in writing to Mr Clarke that his group 1 licence was revoked for one year and his group 2 licence for ten years. The explanation given was that Mr Clarke had lost consciousness in 2010 and 2014 without reliable prodrome.
[175] The period of revocation of a licence on the ground of a faint or any other medical condition or event causing an accident would normally commence from the date of the accident and this is likely to be corrected administratively in due course.
NOTE – PART 2
Representation
[176] On behalf of the Procurator Fiscal –The Solicitor General and G Ross, Advocate
For the family of Jacqueline Morton – DR Bain QC, D Forbes, Advocate
For the family of Gillian Margaret Ewing – AJM Forsyth, Advocate
For the families of John Kerr Sweeney, Lorraine Sweeney and Erin Paula McQuade – ML Stewart QC, EC Toner, Advocate
For the family of Stephenie Catherine Tait – R Conway, Solicitor-Advocate
For DVLA – RR McIlvride QC
For Glasgow City Council – PL Gray QC
For Henry Toal and Mathew Telford – L Ewing, Solicitor-Advocate
For Dr McKaig, Dr Langan and Dr Willox – MB McGregor, Advocate
For Dr Lyons – HM Watts, Advocate
For Henry Clarke – P Reid, Advocate
I express my appreciation for the constructive manner in which the evidence was presented. Substantial agreement of evidence was achieved, which spared many witnesses from attending court and helped to focus issues. The researches, questioning of witnesses and submissions of parties were of great assistance to the Inquiry.
Introduction
Evidence
[177] Evidence was led over 24 consecutive days. Numerous facts were proved by agreement in 8 joint minutes. In this Inquiry, the findings required under section 6 (1) (a) and (b) were essentially established by joint minute. That was appropriate because there was no room for doubt as to those facts and there would have been no advantage in leading evidence to establish undisputed facts.
[178] In addition, 31 witnesses were called to give evidence and they are listed in appendix 1. I have carefully considered all of the evidence led in the Inquiry.
Submissions
[179] The hearing on submissions extended over 25, 26, 27 and 28 August 2015. Some of the submissions were lengthy and detailed and I will not rehearse or summarise all of them. I have given all of the parties’ submissions full and careful consideration, even where there is no specific reference or comment in the relevant part of my Determination.
Assessment of evidence
[180] Facts which are agreed by joint minute are treated as being conclusively proved so I am bound to accept such facts as being established.
[181] I considered that nearly all of the evidence which I heard from witnesses was credible, i.e. the witnesses were trying to tell the truth. Much of the evidence was also reliable, i.e. accurate and correct, but where witnesses were giving evidence about events which occurred some years ago, I had to consider carefully to what extent I could rely on it. In many instances, the reliability of such evidence was reinforced by contemporaneous notes, letters, application forms and other documents. Where witnesses gave evidence of their usual practice, it could provide a basis for accepting evidence even where specific recollection was imperfect or lost.
[182] Where skilled witnesses gave opinion evidence, assessment of competing opinions did not really involve issues of credibility or reliability. It was a matter of evaluating the qualifications and experience of the witnesses and examining the comparative reasoning in the light of the information available to the witnesses.
[183] A fact finder is entitled to accept part of a witness’s evidence whilst rejecting another part, and in some respects I did so.
The legal framework
[184] Section 1(1)(b) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (the 1976 Act) provides for the holding of an inquiry under the Act where
“it appears to the Lord Advocate to be expedient in the public interest…that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern.”
[185] This Inquiry was held under section 1(1)(b) on the ground stated in the application by the Procurator Fiscal that, “it appears to the Lord Advocate to be expedient in the public interest that an inquiry under the said Act should be held into the circumstances of said deaths.”
[186] The application gave notice of certain objectives, namely:
“To publicly establish the circumstances of the deaths to include in particular-
i) examination of the medical assessments and DVLA review process of Henry Clarke’s fitness to hold an LGV and PCV driving licence;
ii) examination of whether any design feature of the motor vehicle or other measures or intervention could have been in place to bring said motor vehicle to a controlled stop after control had been lost;
iii) examination of the safety of the refuse collection route undertaken by said motor vehicle.”
[187] The procedure to be followed in the conduct of Fatal Accident Inquiries is governed by the provisions of the 1976 Act and rules[3] made under section 7(1) of the 1976 Act. Subject to the provisions of the 1976 Act and the Rules, the rules of evidence and procedure are to be “as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone[4].” The standard of proof is the balance of probabilities and corroboration is not required. Hearsay evidence is admissible, as is affidavit evidence, and undisputed evidence may be proved by joint minute of agreement.
[188] Section 6(1) of the 1976 Act provides that the purpose of a Fatal Accident Inquiry is for the sheriff to make a determination setting out the following circumstances of the death, so far as they have been established to his satisfaction:
(a) where and when the death and any accident resulting in the death took place;
(b) the cause or causes of such death and any accident resulting in the death;
(c) the reasonable precautions, if any, whereby the death and any accident resulting in the death may have been avoided;
(d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death;
(e) any other facts which are relevant to the circumstances of the death.
[189] The Court proceeds on the basis of evidence placed before it by the Procurator Fiscal and any other party to the Inquiry. Any determination must be based on the evidence presented at the Inquiry and is limited to the matters defined in section 6(1) of the 1976 Act.
[190] Section 6(1)(c) refers to reasonable precautions whereby the death and accident may have been avoided and this has been interpreted as meaning that a finding under that provision need not arise from a probability. A “(real and) lively possibility” is sufficient[5]. It is not necessary for the court to be satisfied that the precaution would in fact have avoided the accident or death, only that it might have done.
[191] As well as being satisfied that the precaution might have prevented the accident or death, the court must be satisfied that the precaution was a reasonable one. In that regard, I agree with Sheriff Principal Lockhart’s observation in his Determination in the FAI into the Rosepark Care Home deaths, 20th April 2011, at para 8.
“The question of reasonableness is directed to the precaution which is identified. The issue is not whether an individual or an organisation behaved in a reasonable or an unreasonable way, but whether or not there is a precaution which is a reasonable one and which might have made a difference.”
In this context, “reasonable” implies consideration of the availability, suitability and practicability of the precaution contemplated.
[192] “Precaution” has been interpreted widely by sheriffs in determining what is to be identified as a reasonable precaution in the particular circumstances of the case. I proceed on the basis that “precaution” means an action or measure taken beforehand to ward off a possible danger or risk.
[193] Assessment under section 6 (1) (c) involves retrospective consideration of the circumstances with the benefit of hindsight and on the basis of the information and evidence available at the time of the Inquiry. Since a reasonable precaution may be identified with the benefit of hindsight it need not have been foreseeable as necessary at the time.
[194] Before a finding can be reached under section 6 (1) (d), the sort of possibility relevant to section 6 (1) (c) will not suffice. It must be shown that any defect in any system of working actually contributed to the death or any accident resulting in the death.
[195] A Fatal Accident Inquiry is primarily concerned with fact finding and it is not a forum designed to establish legal fault. As Lord President Hope explained[6]:
“There is no power in this section to make a finding as to fault or to apportion blame between any persons who might have contributed to the accident.”
[196] I agree with and adopt the approach taken by Sheriff Normand[7]:
“However, that is not to say that evidence tending to demonstrate fault may not properly be led before the Inquiry. Nor does it mean that the sheriff is precluded from making findings which may infer fault where it is proper to do so. This is important when having regard to future safety and the prevention of a recurrence of the accident or the death”.
Lord Cullen of Whitekirk stated in the course of his review[8]:
“It is true that the investigation into the circumstances of a death in an FAI may disclose grounds of criticism from which a basis for alleging fault may be inferred. That may be unavoidable if the FAI is to fulfil its function of investigating the circumstances of a death.”
It has been said of FAIs that:
“…findings may be very persuasive in ensuring that precautions are taken or defects are remedied with the result that the public could be protected from some recurring hazard or danger to life[9].”
[197] I proceed on the basis that the underlying purpose of a Fatal Accidental Inquiry is to establish what happened, and how it came to happen, with a view to trying to ensure that the same circumstances do not avoidably recur. In the particular circumstances of this Inquiry, all parties recognised that I would have to evaluate whether certain representations made by Mr Clarke were accurate, inaccurate or false before being able to determine the issues to be addressed under sections 6 (1) (c), 6 (1) (d) and 6 (1) (e).
[198] The 1976 Act does not refer to recommendations at all, but it was accepted by all parties that it is an established practice for sheriffs to make recommendations where justified on the evidence[10].
1976 Act Section 5
[199] In this Inquiry, the driver of the vehicle which was involved in the accident was to be called as a witness. On 25 February 2015, the Crown had publicly stated that it would not take criminal proceedings against Mr Clarke. In the course of the Inquiry, the Solicitor General restated the Crown’s position in this way:
“On 25th February, the information put into the public domain was:
”Crown Counsel have concluded that the driver of the lorry should not be prosecuted in respect of this tragic incident. Despite its catastrophic consequences there is no evidence to suggest that the driver's conduct at the time amounted to a breach of the criminal law.”
In reaching its decision that Mr Clarke should not be prosecuted, Crown Counsel considered both the manner of his driving on the day and the information which he had previously provided to doctors and the DVLA about his loss of consciousness in April 2010. The same considerations which were taken into account in relation to the information provided to the DVLA also applied to the information which he provided to Glasgow City Council in relation to his employment with them. My position therefore, my Lord, is that I consider that the scope of the decision in February 2015 described as in respect of this tragic incident extends to all aspects of the manner of Mr Clarke's driving on 22nd December, as well as the information previously provided to doctors and the DVLA and Glasgow City Council in respect of the incident in April 2010 when he was employed by First Bus.”
[200] Accordingly, the Crown had renounced the right to prosecute in respect of all of the matters alluded to by the Solicitor General. The question then arose as to how the terms of section 5 of the 1976 Act would bear on the situation.
[201] Section 5 is in these terms:
“5.— Criminal proceedings and compellability of witnesses.
(1) The examination of a witness or haver at the inquiry shall not be a bar to criminal proceedings being taken against him.
(2) No witness at the inquiry shall be compellable to answer any question tending to show that he is guilty of any crime or offence.”
Where a witness is entitled to decline to answer any question, it is inherent in the judicial function that he should be warned of that right by the presiding judge.
[202] Read literally, and in isolation from subsection 5 (1), subsection 5(2) might appear to mean that regardless of the potential for prosecution, any witness need not answer any question tending to show that he is guilty of any crime or offence. I am doubtful that that is what Parliament intended when this provision was first introduced in the Fatal Accidents Inquiry (Scotland) Act 1895, section 5 (4). My impression is that in the 1976 Act, subsection 5 (2) should be read along with subsection 5 (1) as meaning that the witness is not compellable when he could still be prosecuted. That would be consistent with the position at common law and I apprehend that the legislative intent was to afford the witness the same protection that he would enjoy at common law. That view may gain some support from recent judicial observations[11].
[203] Ordinarily, I might well have determined that Mr Clarke, having immunity from the Crown, would have to answer all questions. In the event, parties came to present me with a consensus that Mr Clarke should be given a section 5 warning, so that I did not hear a full debate on the construction of these provisions.
[204] During the course of the Inquiry, it became apparent that solicitors for the Morton family had made a statement to the media suggesting that there would be an attempt made to mount a private prosecution. Whilst it is a very rare occurrence, the High Court of Justiciary does have power to authorise a private prosecution, and has done so twice in the last hundred years or so[12].
[205] On day 19 of the Inquiry, Ms Bain QC announced that she was instructed to take the initial steps of preparing a bill of criminal letters and she moved to adjourn the Inquiry for 3 months to allow that to progress so that the question of whether there would be a private prosecution could be resolved before Mr Clarke gave evidence. All parties were in agreement that the Inquiry should hear the rest of the evidence, other than that of Mr Clarke, before I adjudicated on that motion.
[206] In due course, the motion was withdrawn by Ms Bain. It became the position of the Morton family that the Inquiry should proceed to a conclusion so that they joined with the Tait family in opposing a motion made on behalf of Mr Clarke on day 22 to adjourn until it became clear if a private prosecution would be permitted. Having considered the competing interests, and in particular the public interest, I refused to adjourn the Inquiry.
[207] Once it had been made clear that the Morton family would be seeking to raise a private prosecution, it was the Solicitor General’s position that Mr Clarke fell to be protected by the provisions of section 5(2) and that I should accordingly warn him that he need not answer any question tending to show that he is guilty of any crime or offence. None of the parties suggested that I should not.
[208] In order to allow me to understand which questions might have the potential to incriminate in the proposed prosecution of Mr Clarke, I invited Ms Bain to set out the scope of the case which she envisaged bringing. Ms Bain contemplated prosecution for causing death by dangerous driving (RTA 1988 section 1) or for causing death by careless or inconsiderate driving (RTA 1988 section 2B). Consideration was also being given as to whether her clients had title to prosecute for statutory offences arising out of allegedly false declarations to DVLA and fraud in relation to a variety of representations, including those connected to Mr Clarke’s application for employment with GCC.
[209] Ms Bain explained that in due course it would be argued that driving in circumstances where it was foreseeable that he would faint was dangerous or at least careless/inconsiderate driving whereby Mr Clarke had made sufficient contribution to the causing of death so as have committed an offence under section 1 or 2B. This analysis, she contended, would overcome the difficulty involved in him not “driving,” i.e. controlling the movement and direction of the lorry by reason of his being unconscious, when the collisions occurred. Any evidence which showed or tended to show that Mr Clarke was aware that he had fainted before, or suffered conditions or symptoms which bore on his ability to drive safely, might be germane. Any attempts made by him to conceal from employers, potential employers and DVLA his relevant medical history, might be germane in yielding inferences suggesting knowledge on his part relevant to the issue of foreseeability.
[210] Ms Bain explained that she envisaged a very widely drawn circumstantial case against Mr Clarke such that almost any answer he gave in relation to his health and his employment history might incriminate him. It was her view that he should be warned that he need not answer any questions beyond his name and age. The Solicitor General came to acquiesce in that approach and no one demurred.
[211] Counsel for Mr Clarke also supported the view that Mr Clarke should be given a warning along the lines proposed by Ms Bain. He also sought to reserve the right to intervene to request that the court should remind Mr Clarke of his right not to answer particular questions.
[212] I considered that in order for the right afforded to Mr Clarke by section 5(2), and the common law, to be practical and effective, he would require to understand which questions might tend to show that he was guilty of an offence. I considered that it would be very difficult for him to grasp the scope of the circumstantial case contemplated by Ms Bain and its implications. I concluded that the most practical and effective means of warning Mr Clarke was to tell him that he need not answer any question other than his name and age.
[213] When he was called as a witness, I confirmed with Mr Clarke that he had had legal advice that morning and then said to him:
“You can choose to answer questions if you wish to do so…But I must tell you this: the law says that you do not have to answer any question if the answer would tend to show that you are guilty of any crime or offence. In practice, that means that you do not have to tell any of the people who ask you questions any more than your name and age.”
[214] From time to time, I reminded Mr Clarke of this when I deemed it appropriate. For the most part he chose not to answer questions, but he did choose to give a full account of the events of 22 December. Since I gave Mr Clarke a warning that he was entitled in law to refrain from answering questions, his declining to answer certain questions and the absence of evidence from him has played no part in my drawing inferences adverse to him.
Evidence led for the families
[215] In addition to the evidence in joint minutes and elicited in cross-examination of witnesses called by the Solicitor General, for convenience, there was interposed amongst the evidence of the Crown’s witnesses, evidence from four witnesses. Ms Bain led the evidence of Dr Nicholas Boon and Dr Daniel Rutherford. Mr Stewart QC for the Sweeney and McQuade families led the evidence of Kenneth Wilson and Nicholas Ward. When these witnesses gave evidence, the respective family lawyer elicited evidence in chief and re-examined where applicable with the parties cross-examining in normal sequence, and the Crown cross-examining last.
[216] I will come to examine the evidence of Dr Boon and Dr Rutherford in considering some of the medical issues which were explored. It is convenient to say something about the evidence of Mr Wilson and Mr Ward at this point.
[217] Kenneth Wilson, head of Environment and Estates at North Lanarkshire Council (NLC) gave evidence as to his council’s approach to route risk assessment[13] and its response to the events of 22 December 2014.
[218] NLC has almost completed a programme of replacing bin lorries where the crew sit behind the driver with lorries where they sit alongside him in the cab. This is not with a view to allowing passengers better access to the controls, it is simply because that happens to be the seating arrangement in vehicles which NLC considers to be superior. NLC has commenced a process of trying to develop for itself some guidance to passengers of bin lorries who might find themselves in the position of the crew in this case, but that has not been finalised.
[219] NLC performed an experiment which had demonstrated that a 26 tonne bin lorry travelling at 29mph was brought to a halt within 5 metres by application of the secondary handbrake without skidding or deviating. That evidence went unchallenged and perhaps it is correct, but it does not sit comfortably with stopping distances to be found in the Highway Code. NLC still awaits advice from its insurers and will consult employees, unions, the Freight Trade Association and its own health and safety department, and consider the outcome of this Inquiry, before taking matters further in this regard.
[220] Discussions are ongoing in NLC as to whether there should be an annual health check for its large vehicle drivers,