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Safeguard OSH Solutions - Thomson Reuters

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Safeguard Magazine

Death of a rubbish runner

JACKIE BROWN-HAYSOM attends the sentencing of three organisations who were prosecuted after the death of a young worker.

The stilted formality of a courtroom is an uncomfortable setting in which to relive the last minutes of an all-too-short life.

But it is here, at North Shore District Court, that a haggle of lawyers has gathered to tease out the factors that led to the death of 19-year-old Jane Devonshire, a runner on a rubbish truck which crashed in suburban Birkenhead on August 10 last year.

The facts of the case are disturbingly straightforward – the truck’s brakes failed on a steep hill, the driver lost control, and the vehicle overturned at the foot of the hill, crushing Devonshire beneath its bulk.

The circumstances behind the facts are more convoluted. A serious problem with the brakes had been identified but not dealt with, the truck’s servicing schedule was in disarray, and there were no clear lines of accountability between the four parties who shared responsibility for the truck’s safe operation.

Three of those parties are in court today, each facing a single charge under the HSE Act – Auckland Council, for whom the rubbish was being collected; Veolia, Devonshire’s employer, which was contracted to do the collections; and NP Dobbe Maintenance, a father-and-son business with a handful of employees which was contracted to service and repair the collection trucks on behalf of the fourth party.

That party, Truck Leasing Ltd, which owned the collection trucks, is not at today’s sentencing. It too has been charged under the HSE Act, but – unlike the other three – has pleaded not guilty and will argue its case in a six-week trial in 2017.

ACKNOWLEDGED FAILURES

For the Crown, Katie Hogan succinctly sets out the acknowledged failures of today’s defendants. Veolia had inadequate oversight of the trucks it was using, kept no maintenance records, appeared to have no knowledge of the truck servicing regime, and did not clarify respective responsibilities in regard to the maintenance programme.

NPD did not maintain the trucks appropriately, did not sufficiently clarify its own responsibilities, and did not communicate effectively with Veolia or Truck Leasing.

The council, as principal, insufficiently audited its subcontractors, particularly in relation to mechanical issues.

Representatives from all three defendants are in the public gallery today – and, in the back row, their faces taut but expressionless, are Devonshire’s mum and dad.

Missing from the scene is the other main protagonist, the truck driver. Though only slightly injured in the crash, he’s still struggling emotionally with what occurred, and has been unable to return to work.

The fifteen months since the accident have been tumultuous for all. Despite early guilty pleas from today’s defendants, it has taken months of negotiation to get everyone’s agreement on the court summary of facts. In her victim impact statement Devonshire’s mum expresses understanding about the resulting delays, but tells how successive adjournments and reschedulings have added to her stress.

Describing the impact of their daughter’s death, both parents speak of a lively, happy young woman who loved her job, cherished her whānau, and showed kindness to many. She lived with her mother and siblings and, as the only wage earner in the household, took it on herself to help out with family expenses, over and above the board she paid.

In the months since her death her parents tell of insomnia, emotional fragility, panic attacks, and simply living from day to day in a world that no longer makes much sense.

Recent restorative justice conferences, at which the parents and the truck driver met with today’s three defendants, were, the Crown says, “well worthwhile”, resulting in offers of practical support.

Veolia had already picked up the cost of the funeral; now the council will pay for a headstone, and try to find suitable work for the driver, while NPD will take him out in a truck in the hopes of rebuilding his confidence.

More important for the family, however, is the realisation from those conferences that the people who could have prevented their daughter’s death are also grieving, and striving to ensure that their mistakes will never be repeated.

LINKED RESPONSIBILITIES

Turning its attention to these mistakes, the Crown speaks of “intertwined responsibilities”. Everyone had obligations, but the complexities of the contractual relationships were such that no one party was taking overall responsibility.

Although Veolia was operating the trucks, Truck Leasing was responsible for – and had to approve – any maintenance work. NPD carried out this work in liaison with Veolia, but had no formal relationship with that company. Auckland Council was in regular contact with Veolia about truck safety, but did not know about NPD’s involvement.

About a month before the accident the truck had a roadside breakdown. The NPD mechanic who attended found the third axle brake needed immediate relining. The vehicle could have been ordered off the road until repaired but – perhaps because it was already overdue for a service and expected to get attention very soon – this did not happen. Instead the mechanic told both the driver and his own boss about the issue. His boss ordered the necessary replacement parts but, after family illness took him away from work for more than a week, forgot to follow up.

The Veolia driver also reported that the truck needed work, but nothing was done.

Four days before the crash the truck had a routine maintenance check, carried out – as had become normal practice – at Veolia’s yard, after hours. The NPD mechanic, working by torchlight on a dirty truck, adjusted the brakes but, because of the difficult working conditions, did not recognise the extent of the problem.

Counsel for NPD, Ellie Harrison, says her client originally dealt with Veolia’s trucks at its own workshops during the day, but after a change of management at Truck Leasing, vehicles ceased to come to the workshop. NPD had complained but, as Veolia’s rubbish collection contract was then about to expire, it assumed the work would soon end, and did not pursue the matter vigorously.

These oversights and errors set the scene, but the final hole in the Swiss cheese that put Devonshire on the truck that morning was a simple quirk of fate. Under normal circumstances, the court hears, Devonshire’s help would not have been needed. Usually the driver worked alone, both driving and collecting bags, but he’d recently suffered a shoulder injury and had been paired with a runner until he recovered.

SENTENCING FACTORS

Counsel for each of the parties points out the lengths to which their clients have gone to cooperate with the enquiry – none more than NPD, which had its contract with Truck Leasing peremptorily terminated the moment the truck owner learned that the Dobbes were likely witnesses for the prosecution at its trial. It was, no doubt, a serious blow for a small organisation.

The process has not been kind to the victims either. Because of a communication failure, the court is told, it was some six months after charges were laid before the truck driver learned that he would not be prosecuted – and, by his own admission, the months of unnecessary strain took a heavy toll.

As Judge Craig Thompson begins the sentencing, his manner as much as his words make it clear he’s dealing with the aftermath of tragedy.

It’s not, he notes, Veolia’s first fatality involving brake failure on a rubbish collection truck. In 2007 one of its drivers died, just streets away from the scene of Devonshire’s death, in disturbingly similar circumstances, and in an almost identical vehicle.

The council, however, did not know this, despite a prequalification health and safety audit before the renewal of Veolia’s contract in 2015, regular spot-checks on collection vehicles, and monthly meetings with the company’s management.

The judge is impressed, however, by the “realistic” remedial measures all three defendants have taken, and accepts them as proof of genuine remorse.

Veolia now uses different trucks, from a different supplier, does most of its own servicing in-house, conducts weekly brake inspections, and has reviewed its training and operating procedures.

NPD has introduced a tag system and improved communication lines to coordinate vehicle maintenance, has a new diagnostic tool to quickly identify vehicle faults, and works only at its own premises unless attending breakdowns.

Auckland Council has introduced KPIs and a new reporting regime for Veolia, and had its contractor management practices externally reviewed.

“It is,” the judge reflects, “so sad that it has taken this tragedy to focus minds on the steps that, with hindsight, may now seem obvious.”

PENALTIES

He sets reparation for Devonshire’s family at $120,000, and that for the driver at $25,000, apportioning the sums between Veolia, NPD and Auckland Council on a 45:37:18 ratio. Although one party is yet to be tried, justice and the Sentencing Act both require the victims to be given priority, he says, so the award is made now, on the understanding that, should Truck Leasing also be convicted, the judge in that case will determine its percentage liability and order it to reimburse the other parties accordingly.

On the subject of fines, he attributes the greatest liability to Veolia, putting its culpability at the lower end of the high range, with a starting point of $100,000, which he reduces to $65,000 in light of the mitigating factors.

Auckland Council, he says, has lower liability because it was “remote from the day to day operations and could only monitor things from a relative distance.” For it the starting point is $60,000, reduced to $33,000.

He expresses some sympathy for NP Dobbe Maintenance, noting that “while it should perhaps have brought things to a head by terminating the contract or making some other strong point, I accept that in practical terms it’s difficult for a small company to play tough with much larger entities.”

He assesses its culpability as low and, from a starting point of $40,000, arrives at a fine of $22,000.

KEY LEARNING

The court rises. Justice has been done – but what has been learnt?

For me, perhaps, the biggest surprise is that all three parties were responsible – even caring – in their approach to health and safety.

Veolia achieved tertiary WSMP accreditation just weeks before the crash.

In an affidavit, health and safety governance expert Mike Cosman described Auckland Council’s contractor auditing regime of the time as having established “a new benchmark for what is a practicable step for territorial authorities”.

NPD, though a small player, tried repeatedly to raise its concerns with the other parties. Everyone was trying to do the right thing.

Yet somehow, in the midst of the complicated multi-party arrangements, important things got lost – to the point where, on paper at least, the errors and omissions seem glaringly obvious.

But the faces of those in the courtroom today make it clear that for each of the organisations this has been personal. They hate what’s happened and would give a great deal to be able to rewrite history and be wise before the event.

The tragedy is that if any one of today’s defendants had taken it on themselves to get everyone else round a table, to talk about what was going on, and who was doing what, it’s quite possible that none of us would have needed to be here today.

JACKIE BROWN-HAYSOM

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