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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Alert24 - Safeguard Update

Logbook check brings charges

Logbook check brings charges
Article Type:
Cases
Publication Date:
2016-12-09
Jurisdiction:
New Zealand

A trucking company and its dispatcher have been fined a total of $55,000 and ordered to pay $30,000 in reparations to a truck driver who was seriously injured when his double-trailer unit left the road after he fell asleep at the wheel.

Freight Lines Ltd (FLL) was fined $51,000 under s6 of the HSE Act, and Aaron Lee Pourewa $4000 under s19(b), following a fatigue-related truck crash in November 2014 in which an FLL driver was critically injured (Christchurch DC, 16 August 2016). By agreement, the company will pay the full sum of reparations.

In the week leading up to the crash, the 67-year-old truck driver had worked around 77 hours, without adequate breaks, but falsified his log book to make it appear that his hours were compliant with Land Transport Act limits, which require a half-hour break for every five-and-a-half hours driving, no more than 13 hours work per day, and at least 24 hours off after 70 hours of work.

He had raised the issue of excessive hours with Pourewa two days before the incident, and was initially told to check into a motel and let another driver take over. However both realised the truck would then miss its scheduled Cook Strait crossing, so he instead took a brief break at his home near Putaruru and continued the drive. When nearing the end of this journey, in the early hours of November 10, he fell asleep at the wheel, crossed the centreline and crashed into a large tree near the Ashley River, in North Canterbury. He suffered extensive injuries, including a spinal fracture and moderate brain injury which continue to have a serious impact on his life.

A week after the crash WorkSafe received a serious harm notification from FLL but, based on the minimal information supplied, decided not to investigate. The police Commercial Vehicle Investigation Unit (CVIU) adopted a different stance, however, and used fuel purchase receipts, GPS data, wage records, time sheets and other business information to check against the driver’s log book.

When charges were laid the company and dispatcher both pleaded not guilty, but FLL changed its plea two months later. After protracted negotiations, Pourewa also admitted liability in June 2016, with both parties accepting that the tasks assigned to the driver could not have been realistically achieved within legal work time limits.

The court heard that FLL’s method of allocating work did not take either its own fatigue management policies or the LTA limits into consideration, that it did not monitor the hours worked by the injured driver, and that it had no audit process to ensure logbooks were not falsified. Dispatch staff were also not sufficiently trained in their responsibilities under the law, and in relation to drivers’ health and wellbeing.

Judge Tom Gilbert said he did not believe FLL’s practices in this regard “varied materially from [those of] other participants in the freight industry”, but the fact that others were not meeting minimum standards was not a mitigating factor.

He acknowledged that the driver had played a role in the events that gave rise to the accident, but said this did not justify a reduced penalty for the other parties.

“[The driver] has paid the highest price of anybody. The fact is that if FLL and its employee had undertaken the practicable steps open to them, the prospects of this accident would have significantly diminished.”

On the question of reparation, the judge said he could not award an ACC top-up, as the accident occurred a few weeks before the law change that made these payments possible.

Considering fines, he put FLL’s culpability at the upper end of the mid band, adopting a starting point of $85,000, discounted to $51,000 to acknowledge the company’s guilty plea, remorse, remedial actions and full acceptance of the reparations award.

For the dispatcher the starting point was harder to determine, he said, because he had not been appropriately trained to manage fatigue, had himself been working long hours under high pressure, but had also knowingly allowed the driver to exceed his hours – “ a significant failing ... in his obligation to his fellow employees.”

He put culpability in the mid range, starting at $60,000, discounted to between $30,000 and $40,000 for remorse and a guilty plea, but reduced it further to $4000, to be paid in instalments, to allow for his financial situation.

 

 

People Mentioned:
Aaron Pourewa
Organisations Mentioned:
Freight Lines
Reference No:
161209CA-7260

From Alert24 - Safeguard Update

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