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Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

R v Auckland Council (DC, 21/10/16)

OSH Tracker

Defendant:
Auckland Council
Auckland Council, Veolia Environmental Services NZ Ltd and N P Dobbe Maintenance Ltd were fined a total of $120,000 with reparations of just over $145,000 after a rubbish truck runner died when the truck’s brakes failed and the truck crashed over a bank. Charges were laid under the HSE Act by the police Commercial Vehicle Investigation Unit, which found no one party had taken overall responsibility for the safety of rubbish collection operations (North Shore DC, 21 October 2016). 
Industry:
Government Administration and Defence
Sub-Industry:
Government Administration
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Death
Penalty Amount:
$54785.40
Reparation Amount:
$21785.40
Appeared in Safeguard issue 160
Defendant:
Veolia Environmental Services (NZ) Ltd
Auckland Council, Veolia Environmental Services NZ Ltd and N P Dobbe Maintenance Ltd were fined a total of $120,000 with reparations of just over $145,000 after a rubbish truck runner died when the truck’s brakes failed and the truck crashed over a bank. Charges were laid under the HSE Act by the police Commercial Vehicle Investigation Unit, which found no one party had taken overall responsibility for the safety of rubbish collection operations (North Shore DC, 21 October 2016). 
Industry:
Health and Community Services
Sub-Industry:
Community Services
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Death
Penalty Amount:
$115832.60
Reparation Amount:
$50832.60
Appeared in Safeguard issue 160
Defendant:
N P Dobbe Maintenance Ltd
Auckland Council, Veolia Environmental Services NZ Ltd and N P Dobbe Maintenance Ltd were fined a total of $120,000 with reparations of just over $145,000 after a rubbish truck runner died when the truck’s brakes failed and the truck crashed over a bank. Charges were laid under the HSE Act by the police Commercial Vehicle Investigation Unit, which found no one party had taken overall responsibility for the safety of rubbish collection operations (North Shore DC, 21 October 2016). 
Industry:
Transport and Storage
Sub-Industry:
Services to Transport
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Death
Penalty Amount:
$58309.00
Reparation Amount:
$36309.00
Appeared in Safeguard issue 160

Judgment Text

NOTES OF JUDGE C J THOMPSON ON SENTENCING 
Judge C J Thompson
[1]
As is well known, this is the outcome of prosecutions brought against the Auckland Council, Veolia Environmental Services New Zealand Limited (and I will continue to use that name although the organisation has been referred to also by its former name of Onyx) and N P Dobbe Maintenance Limited. Each of those entities has pleaded guilty to one charge laid under provisions of the Health and Safety in Employment Act 1992. 
[2]
There is an agreed summary of facts and I do need to record it, although I shall try to do so relatively briefly. On 10 August 2015, a crash occurred in Birkenhead, North Shore which involved a refuse collection truck and, tragically, that crash resulted in the death of Ms Jane Devonshire, then aged 19, who was employed as a rubbish collector by Veolia Environmental Services Limited. The driver, Mr Clough received, fortunately, relatively minor injuries. The Auckland Council is the local Government body responsible for the area, and it engaged Veolia as a contractor to collect rubbish - over a period of years. In turn, Veolia entered into an agreement with a company called Truck Leasing Limited to lease a fleet of specialised refuse collection trucks, including the one involved in this tragedy. 
[3]
There were arrangements for the responsibility for the costs of maintenance and repair of trucks between Truck Leasing Limited and Veolia; and Veolia was responsible for ensuring that the schedule for maintenance was complied with. In turn, Truck Leasing Limited contracted N P Dobbe Maintenance Limited to service and repair those trucks. Truck Leasing Limited is not involved in today's proceeding. It has been charged with similar offences arising out of the incident but it is defending those charges and they will be heard later. I shall return to the practical consequences of that. 
[4]
The accident occurred shortly before 11.00 am. The truck was heading south on Kauri Road, Birkenhead. The driver, Mr Clough, stopped for the runner, (that is the person who picked up the bags of refuse and so on left at the side of the road), Ms Devonshire. Shortly after the driver pulled away the brake low air warning sounded. Mr Clough tried to apply the service brake but the brakes did not respond. He then applied the park brake and attempted to engage reverse gear, but neither of those steps were successful in stopping or even slowing the truck. The truck, as described in the summary, careered about 120 metres down the road. Mr Clough attempted to turn the corner at the bottom of the road but could not do so. The truck crossed the road, crashed down a steep bush clad bank and came to rest on its left side at the bottom of the gully. 
[5]
Tragically, Ms Devonshire, who had been standing on the cab steps, was crushed as it came to rest in the gully and she suffered fatal injuries. Mr Clough was trapped in the truck until he was able to be cut free by emergency services and, as I have said, fortunately his injuries were relatively minor and he was discharged from hospital later that day. 
[6]
The investigation into the accident has shown that the brake failure contributed towards the cause of the crash in a number of respects. Principally, the six automatic slack adjusters on the service brakes were not operating correctly. The brake linings on both sides of axle 3 were worn beyond the minimum lining thickness, and both brake drums were unserviceable due to the poor condition of their surface. The service brake on the right-hand side of axle 3 was not operating at all. The park brake on the right-hand side of that axle was not operating and, when tested, there was no significant temperature reading on the right-hand brake of that axle, indicating that it was not operating at the time of the accident. 
[7]
It was also shown, although its relevance to the cause of the accident seems to be somewhat dubious, that the warning light for the antilock braking system was not operating because the bulb had been removed at some point. There is an indication that had it been functioning, it could have indicated a fault with the brakes but, as I understand the submissions, that is not completely certain. 
[8]
The truck's computer system was analysed and there were 127 recorded system faults which is the maximum that could be logged; any one of which might have operated that warning light, had it been going. The truck did have a current certificate of fitness. It was due to expire about a month after the accident. As at the date of the accident, the truck was well overdue for a major service. 
[9]
On 28 July, approximately two weeks before the accident, an air hose within the braking system had detached and a mechanic employed by N P Dobbe refitted the hose and adjusted the brakes, in response to the indication from the driver that the brakes were not holding well on the hills. That mechanic noted on the job card that the third axle brake, which is the one indeed that seems to have caused the problem, needed to be relined. Notwithstanding that, the truck remained in operation and, anticipating that the repair work to the brake would be done at the same time as the major service, the supervisor for N P Dobbe ordered replacement parts but the fact that he had done so was not communicated to Veolia, partly because he was ill for some time I understand. The driver had informed Veolia at the yard later that day that the truck needed to have more brake repairs also. 
[10]
There have been previous incidents involving Veolia rubbish collection vehicles. One was in 2006 which resulted in moderate injuries I am told. In 2007 there was another incident which, again, tragically resulted in the death of the driver. 
[11]
The companies were interviewed through their representatives. The representative of N P Dobbe was clear that in his view, that the trucks were past their service life; that there was constant confusion about the respective maintenance responsibilities between it and Veolia; that there were problems about running the servicing schedule - Veolia were failing to keep track of required maintenance. N P Dobbe was required to service the vehicles in Veolia's yard afterhours, rather than in the workshop, often it is said on gravel and in poor light, so they found it difficult to get access and sufficient time to undertake the work. Veolia stated that it had no knowledge itself of when the services were due and it had no process in place to check the quality of maintenance performed by contractors. 
[12]
The Council stated that the provision of the trucks and the servicing of them was, so far as it was concerned, Veolia's responsibility under the contract and that the Council did not have the necessary expertise to delve in detail into maintenance records and to ensure an appropriate maintenance programme. The Council did though undertake health and safety spot checks on rubbish trucks and had monthly meetings with contractor, in particular about health and safety issues. It did not know about any specific failings that were detailed or identified in the Police enquiries about this accident. 
[13]
The charges are premised on the basis that N P Dobbe breached s 15 by failing to ensure that no action or inaction of an employee harmed any other person, and there were said to be steps which that company could have taken to ensure that the brakes on the trucks were safe, that the warning lights were operating safely and that servicing and repairs were adequate to keep the fleet operating safely, and to ensure that the vehicles were not compromised in their safety. 
[14]
Veolia was charged on the basis that it failed to take all practicable steps to ensure that its plant was maintained so that it was safe for employees to use, and some of the practical steps it could have and should have taken were listed as being, to ensure that the brakes were safe and compliant with the relative requirements; to ensure that the brake warning lights were operating safely; to ensure that a servicing regime was in place to keep the fleet operating safely, and to ensure that agreed servicing timeframes were complied with. Further, it should have ensured that N P Dobbe was given time, facilities and information to service the vehicles to the required standard and to otherwise supervise and ensure that those vehicles were safe. 
[15]
The Council is charged as principal, with the allegation being that it failed to take all practicable steps to ensure that no employee of a contractor was harmed while doing work that that contractor was engaged to do, and the steps that it is said to have had available to it, but did not take, was to appropriately and sufficiently audit and monitor health and safety practices by its contractors and to be aware of maintenance plans and to audit and monitor those. 
[16]
Turning to the outcome, the submissions that I have read and heard today have been very fulsome and extensive. I cannot possibly, in any reasonable way, recite each and every factor of them and I hope that I will be forgiven for making a summary of them: - of the factors that strike me as being significant in setting both an appropriate level of reparation and a penalty fine. 
[17]
We start with the fact that the maximum fine for each offence under the Act that the defendants have been charged with, is one of $250,000. Additionally, there is an issue of reparation under the Sentencing Act for the victims who are, it is accepted, Mr Clough who was injured in the accident and who has been traumatised by it; and the parents and siblings of Ms Devonshire. Reparation can be for direct consequential loss: - that is loss of income, or expenses, and it can be for emotional harm too: - for instance those who are grieving for the loss of a loved family member and friend. It is of course accepted by everybody that no amount of money can compensate for that sort of loss and that sort of grief, but money can be available to try to provide some material comfort at least. 
[18]
I should say too that there has been strong contact between the parties, the defendants and the victims, under the auspices of restorative justice. The three defendants have given full and frank apologies and expressions of sympathy, and they have been accepted in the tone and context of the way in which they were given. There have also been contributions to costs, such as the funeral expenses for Ms Devonshire; the payment of a headstone to mark her grave; some of Mr Clough's expenses are being met. He is still experiencing trauma; he is finding great difficulty to get back to employment and the parties, in particular the Council, have offered to try to assist with that, as have the management of N P Dobbe who have volunteered to try to help ease him back into employment if that can be done. 
[19]
All three defendants have accepted their parts in this tragedy. All say that they have examined their practices and protocols and have found them wanting: - in hindsight. They have made significant changes. For instance Veolia now uses different trucks from a different supplier. It is doing more of its own maintenance and record keeping. The Council has been increasing its checking and auditing of its contractors, although it does point out that it thought that its auditing and checking processes were at least satisfactory at the time, but it accepts now that they still had failings. 
[20]
As always, it is so sad that it has taken this tragedy to focus minds on steps that, with hindsight, may seem now to be so obvious and which could have prevented this tragedy coming about. 
[21]
In terms of an approach to sentencing, there is no dispute I think that the appropriate approach is as discussed by the full Court in the case of1
| X |Footnote: 1
Department of Labour v Hanham & Philp Contractors (2009) 9 NZELC 93,095; (2008) 6 NZELR 79 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
Department of Labour v Hanham & Philp Contractors which was cited to me and accepted by all. 
[22]
Step 1 is to assess an appropriate amount of reparation. Step 2 is to fix the amount of the fine, and step 3 is an overall assessment of the proportionality and appropriateness of the total of reparation and fine to be imposed. Here,, I think there is a fourth step too, and that is that I need to assess the roles of each defendant and the proportion of a total reparation figure that each should bear - and then an appropriate level of fine for each. That cannot be an absolute mathematical exercise. Certainly there are guidelines as to appropriate figures, but in each case it is a matter of judgement rather than mathematical certainty. As I have mentioned, the maximum fine for each defendant is $250,000. I then need to look at the level of culpability of each defendant; the means to pay of each defendant and, if there is limited means, then reparation of course is to take priority. Reparation is to be regarded, as the case of2
| X |Footnote: 2
R v Lewis 
R v Lewis indicates, as a joint and several liability where there are different defendants. 
[23]
The Hanham case sets out possible factors in setting a fine and I need to just deal with them briefly. First, the identification of practicable steps which the Court finds could have been reasonable for each defendant to have taken; an assessment of the nature and seriousness of the risk, as well as the realised risk; any degree of departure from standards prevailing in the industry; the obviousness of the hazard; the availability, cost and effectiveness of means necessary to avoid that, and the current state of knowledge of risks and harm. 
[24]
Hanham also set three bands of culpability: - they have been cited to me and I adopt them gratefully. Given that the maximum fine is $250,000, Hanham said that if a defendant is found to be of low culpability, a fine of up to $50,000 might be appropriate. For medium culpability, a fine of between $50,000 and $100,000 might be appropriate; and for high culpability, a fine of between $100,000 and $175,000. And it is accepted, as of course it is with all regulatory offending, that any penalty imposed must bite, that is it must be a penalty, and not simply viewed as some kind of perverse licensing fee. 
[25]
In terms of aggravating factors, as Veolia has had to acknowledge, there were similar earlier incidents, one of them tragically resulting in a death, and I have to say that it seems that insufficient notice was taken of that in terms of process and procedure, and making sure that strict maintenance processes were in place. 
[26]
In terms of mitigating factors, I accept without question that the remorse and regret that has been expressed by all of the defendants to the victims is sincere and genuine. I accept too that there have been offers of practical and financial assistance with expenses and the like. I accept too that there has been genuine examination on the part of each of the defendants of their own practices and their own acceptance of fault. Importantly, and I do regard it as a significant mitigating factor, there have been changes made to try to prevent such a tragedy reoccurring - and they seem to be realistic changes. 
[27]
In terms of mitigating factors though, I have to say that I do regard it as somewhat artificial to break down factors such as co-operation with inquiries, expressions of remorse and practical help into distinct separate components. I do not think that is a realistic way of approaching a sentencing exercise. Co-operation is to be expected, particularly of course from a government authority such as the Council, and indeed that is what happened - all parties did co-operate and have been genuine in that. All of those factors can be recognised as part of remorse, a wish to apologise and express condolences and in particular to try to learn from this tragedy and prevent it recurring. 
[28]
I look first at the issue of reparation. For Ms Devonshire's parents and family the prosecution suggests a global figure of the order of $120,000. For N P Dobbe Maintenance Limited, Ms Harrison suggests rather a figure of $100,000 - with some emphasis being put on the fact that they are insured for reparation. Veolia accepts a figure of $120,000. The Council does not propose a figure but does not contest that sum. 
[29]
As I have mentioned, Ms Devonshire was only 19 at the time of her death. She did not have direct dependents, in the sense of children of her own, but it certainly appears from the material before me from the restorative justice and victim impact statements, that she was the only wage-earner in her family and that they relied upon her to a good extent for contributions towards household expenditure. As well of course, the loss of a cherished 19 year old daughter and sibling would be, and plainly is, from the material before me, devastating. I have to say that a figure of $120,000 seems to me quite appropriate and fair. 
[30]
For Mr Clough there is no dispute about his consequential losses over and above those met by Accident Compensation Corporation and they are agreed as being $10,236.00. There is some issue about emotional harm reparation for him. Against the basis of what was discussed by the Court in the Hanham & Philp decision, the prosecution suggest a figure of between $15,000 and $30,000, that is a pretty broad range. The Council does not take issue with that figure. Veolia suggests a figure of $10,000, as does N P Dobbe. I think it should be at the more generous end of that. Again, putting a dollar figure on the trauma he suffered and continues to suffer is somewhat artificial but I think that at the very least, a sum of $15,000 would be appropriate. 
[31]
In terms of proportions between the defendants, in my view, Veolia has to take principal responsibility for this. It was the contractor to the Council; it was the employer of Ms Devonshire and Mr Clough; it operated the truck, and it must take responsibility for the truck being properly maintained and for its employees being as safe as was possible. It failed in that. The Crown submits that 35 percent of total reparation would be appropriate. Veolia disputes that, suggesting 30 percent. Again, there is little between the two and I think that 35 percent is an appropriate and fair proportion. 
[32]
In terms of N P Dobbe Maintenance Limited, the prosecution suggests 30 percent and the company suggests 25 percent. Again, not a great difference. N P Dobbe was contracted to do the work on the trucks and to keep them up to standard. It is plain enough now that communication between it and Veolia was not adequate and I think it is plain enough too that there is some justification for the company submitting that the circumstances in which it was expected to carry out its contractual obligations were not at all satisfactory. Most of the work, it seems, was not able to be done in a workshop; it was done at night when the trucks were not in use. There was no efficient scheduling and now, in hindsight, the company knows that it should perhaps have brought things to a head by terminating the contract or making some other strong point but it did not. I accept that, in practical terms, it is difficult for a small company to “play tough” as it were, with much larger and bigger entities. I have some sympathies for its position and I consider that 25 percent would be a fair and appropriate proportion. 
[33]
The Council does not dispute what the prosecution proposes as its contribution of 15 percent. The Council had overall responsibility in that it was the head party, the principal, but it was, I accept, remote from the day-to-day operations and could only monitor things from a relative distance. 
[34]
So the position to that point is that I consider that Veolia should bear 35 percent of the reparation, N P Dobbe Maintenance Limited 25 percent and the Council 15 percent. That totals 75 percent of the overall figure. The issue of Truck Leasing Limited remains unresolved. As I have indicated that company has entered “not guilty” plea to the charge against it and that is scheduled for a hearing, I understand, at some point in 2017. 
[35]
There have been options put forward to deal with that in practical terms: ie as to how reparation might be dealt with so that the victims here at least have compensation coming to them within a reasonable time. Each of the options has some attractions and possible detractions but I think that when it comes to those, I have to give priority to the interests of the victims. That is what the Sentencing Act requires and that is what justice requires in an overall sense. 
[36]
So, to be as fair as I can see a way to be, I have come to the view that Option 3 put forward by the prosecution is the most fair and appropriate. That is, that Veolia, N P Dobbe Maintenance Limited and the Council should share responsibility for payment of the whole reparation in proportion to the relativities that I have already set out. If, at the conclusion of the proceedings against it, Truck Leasing Limited is convicted and the sentencing Judge accepts that the proportion of the global figure of 25 percent should be what it pays, then the other three parties can be reimbursed proportionately. Ms Hogan was kind enough to provide the mathematics for that. 
[37]
In terms of the fines to be imposed I am of course, as I have already indicated, guided by the Hanham & Philp decision and I have also found assistance in the judgment of Duffy J, that was cited to me this morning,3
| X |Footnote: 3
Department of Labour v Eziform Roofing Products Limited [2013] NZHC 1526 24 June 2013Has Cases Citing which are not known to be negative[Green]  
Department of Labour v Eziform Roofing Products Limited. Also other judgments have been cited to me and I have had the opportunity to consider them and I find them all of assistance. 
[38]
Dealing first with the Council. I agree with the range suggested by the prosecution of $60,000 to $80,000 and the $65,000 suggested by the Council itself. There is a range there and I am broadly in agreement with it. I am conscious of what I have already said about reparation. I will take what I think to be a fair figure of a start point of $60,000 for a fine for the Council. The discounts suggested for the Council total 35 percent, leaving aside the discount for a prompt guilty plea. I have to say that conceptually I think that there is some double counting in that calculation. As I have said, issues of remorse, of practical help and so on, all merge into an overall picture of a defendant which does sincerely regret what occurred and is trying to do its best to make sure that it does not reoccur. I think that a discount, taking all those matters together, of 20 percent would be more than enough. So taking the start point of $60,000 and subtracting that 20 percent, and then of course the 25 percent which is accepted on the basis of the judgment in4
| X |Footnote: 4
Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
Hessell v R for a prompt plea of guilty, the Council will be convicted and fined $33,000. 
[39]
In terms of Veolia, looking at the Hanham range, one can argue with equal justification I think that its position should be regarded as being at the low end of the high range or at the high end of the medium range - it does not really matter. It is a distinction without a real difference. I will take on that basis a start point of $100,000. There should be, again, a global discount for remorse, assistance to the families, somewhat offset by the previous incidents that I have mentioned of accidents with its trucks. So I will allow it a net discount of 10 percent and of course again the 25 percent for the prompt plea of guilty. That company will be convicted and fined $65,000. 
[40]
N P Dobbe Maintenance Limited has, in my view, low culpability in terms of the Hanham & Philp range: - that is a fine of up to $50,000 would be appropriate. I also bear in mind the provisions of the Sentencing Act under which of course the means of a defendant to pay a fine is a significant factor in setting the fine, - that is simple logic. There is material before me, presented by way of affidavit, that the company's financial position is not strong in terms of being able to meet a fine and I take that into account. I also take into account of course its remorse and the practical help that it has offered. So for that defendant I will set a start point of $40,000 and I will make a net discount of 20 percent for those factors and again 25 percent for the plea. That company will be convicted and fined $22,000 and, if it requires to do so, it can make arrangements with the Registrar to pay that by instalment. I will not myself set a rate of payment. 


Department of Labour v Hanham & Philp Contractors (2009) 9 NZELC 93,095; (2008) 6 NZELR 79 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
R v Lewis 
Department of Labour v Eziform Roofing Products Limited [2013] NZHC 1526 24 June 2013Has Cases Citing which are not known to be negative[Green]  
Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  

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