Multiple failures by truck lessor

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A District Court judge has severely criticised a truck leasing company for what he says was an almost obsessive focus on minimising costs rather than ensuring the safety of its rental fleet, after one of its vehicles was involved in a fatal accident caused by brake failure.

Judge Robert Ronayne convicted Truck Leasing Ltd (TLL) under s18A of the HSE Act, for failing to take all practicable steps to ensure that a rubbish truck it had leased to Onyx had been maintained so as to be safe for its intended use (Auckland DC, 21 August 2017).

The charge, brought by NZ Police, related to an incident in August 2015, when an out-of-control Sterling rubbish truck crashed on a steep street in suburban Birkenhead, killing 19-year-old rubbish runner Jane Devonshire. 

In October last year Onyx (under the alternative name of Veolia), vehicle service provider NP Dobbe Maintenance, and the rubbish collection principal Auckland Council all admitted breaches of the HSE Act in relation to the incident, and were fined a total of $120,000. TLL alone elected to contest the charge against it, stating in its defence that it had been entitled to rely on Onyx and NP Dobbe to adhere to their contractural obligations. It also suggested the truck driver – whose name has been suppressed – acted unlawfully when he took the truck out on the day of the crash because he knew it had problems. In these circumstances, the company claimed, there was a total absence of fault on its part.

The judge took a different view, however, noting in a written judgement, released after a two-and-a-half week trial involving 20 witnesses, that, because of the legal and contractural obligations on the other parties, TLL appeared to regard itself as “insulated” from any responsibility for safety, and had “unjustifiably endeavour[ed] to shift blame [for the faults that gave rise to the incident] to all others.”

The judge said the six Sterling rubbish trucks that TLL leased to Onyx were “obviously worn out”, inherently unsuitable for rubbish collection, and not receiving the level of proactive brake maintenance that was required for a job which involves some 2000 brake applications per day.

He said a police vehicle inspection of the crashed truck found six faults in the braking system, some of which had, according to computer records, been present for at least two, and possibly six, months. There were also seven other unrelated faults.

A subsequent safety audit of the five remaining Sterling trucks used by Onyx found none had operative ABS systems, and all had other safety faults sufficient to have them ordered off the road.

TLL attributed the poor condition of the fleet to failings by Onyx and, in particular, NP Dobbe, but the judge said that as, under its maintenance contract, TLL had to authorise any work that was done on the trucks, the resulting work records should have made it clear that they were not being adequately serviced. Some 25% of the required weekly service checks had been missed, he said.

“[TLL’s general manager for commercial vehicles, Dean] Purves consistently referred to TLL’s maintenance obligations in language suggesting he understood the obligation as being only to pay for it. That is revealing as to TLL’s focus, if not blinkered obsession, with costs rather than proactive, safety-focused, preventive maintenance [which] seems to have been an academic concept for TLL.”

The judge also took issue with TLL’s failure to familiarise itself with WasteMINZ’s industry guidelines in relation to contractor responsibilities, and said it was “facile” for Purves to assert that the company had no involvement in the waste industry and was merely a vehicle provider.

He also noted that the company appeared to have retained little or no institutional knowledge from two previous accidents – one of them a fatality – caused by brake failures on other rubbish trucks it had leased to Onyx.

The judge acknowledged that the Sterling trucks were expensive to maintain, noting that in 2009 TLL had had to negotiate a system of cost-sharing with Onyx because of escalating service requirements. As a result, he said, both companies became cost-conscious in relation to maintenance.  Onyx often delayed dealing with known problems, and – because it had a small fleet for the volume of work being done – would order trucks to other jobs while NPD mechanics were waiting to work on them. Onyx also insisted that all regular maintenance checks, and some long-service ones, were carried out at its own yard, with the work frequently being done in what the judge described as appalling conditions – after hours, by torchlight, on rubbish-contaminated trucks, working on a gravelled surface that made inspection of the underside of vehicles very difficult.

NPD had informed TLL about these issues, he said, but its complaints had been ignored.

He had, he said, drawn “an evitable inference that [because the vehicles were nearing the end of their working lives] TLL had a philosophy of altogether avoiding costs wherever possible.” As a result it had set tight time limits for maintenance tasks and would sometimes refuse to pay for work done, creating a situation where NPD would occasionally invoice for less than was owed, to avoid disputes.

He noted that NPD had not taken the truck off the road when a potential problem was identified a few days before the fatal crash, but said this failure was reflective of “systemic faults which were known to, and largely created by, TLL.”

In response to TLL’s claim that the driver was also at fault, the judge said he accepted the driver’s evidence about “repeated, but ultimately futile, efforts” to have faults with the truck rectified.

“In reality he had little practicable choice other than to obey instructions [and continue using the vehicle].”

Judge Ronayne rejected TLL’s assertion that, because it leases some 17,000 vehicles, it must rely on robust contractural relationships to ensure its fleet is adequately maintained. The law, he said, requires systematic management of health and safety, and a company that cannot afford to meet this requirement cannot afford to be in business.

He went on to say that, because the nature and severity of harm that could result from poor truck maintenance, and the likelihood of harm from brake failure, were self-evident, the cost of addressing the issue was “irrelevant, except to determine whether it makes economic sense to fix the brakes and use the truck, or not use it at all.”

He found TLL had failed to take five practicable steps:

• Ensuring the brakes on the truck were safe and lawful;
• Ensuring agreed servicing timeframes were met;
• Ensuring the service regime was adequate to keep the fleet operating safely, and that the division of responsibility was understood by all parties;
• Ensuring NPD staff had access to the necessary service facilities; and
• Ensuring NPD was undertaking repair work to an appropriate standard, and appropriately communicating outstanding safety issues to TLL and Onyx.

The company will be sentenced on 13 October.

Reproduced with permission from Safeguard

Article published in Safeguard Update - 11 September 2017