WorkSafe New Zealand v Ritchies Transport Holdings Ltd [2019] NZDC 18495

Published 17 February 2020

Sentencing — failure to develop an adequate and effective safe system of work — bus crash — bus hire — dry hire — no dry hire rental agreement — maintenance records for vehicles being dry hired — death — Person Conducting a Business or Undertaking — PCBU — New Zealand Police v Aholelei [2018] NZDC 996 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — Department of Labour v Hanham and Philp Contractors (2008) 6 NZELR 79 — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 — WorkSafe New Zealand v Department of Corrections [2017] 368 — R v Leslie Lewis CA 7/98, 17 June 1998 — WorkSafe New Zealand v Phil Stirling Building Ltd [2019] NZDC 10608 — WorkSafe New Zealand v Luke Martin Roofing Ltd, DC, Christchurch, CRI-2017-009-005381, 12 June 2018 — Oceania Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365 — Land Transport Rules: Operator Licensing 2007, Part 9.2(1) & Schedule 3 — Health and Safety at Work Act 2015, ss 3, 36(2), 48 & 151(2)(d) — Sentencing Act 2006, ss 7 & 8. The defendant appeared for sentencing after pleading guilty to failing to develop and implement an adequate and effective safe system of work so that arrangements for the dry hire of buses were safe and suitable. The defendant had hired a bus to a group from Tonga, who were to travel from Auckland to Hamilton and Gisborne for musical performances. The tour group had arranged the hire through a person who had many years' experience working as a driver for the defendant company. This person arranged the hire and agreed to drive the bus for the tour group; an arrangement known as a dry hire. Near Gisborne, the bus developed problems with overheated brakes. The driver decided to stop the bus to allow the brakes to cool, but did not seek advice or help. After resuming the journey to Gisborne, the driver lost control of the bus on a steep hill and the bus crashed killing three passengers and injuring many more. A WorkSafe investigation showed that the defendant lacked proper procedures and agreements covering dry hires of its vehicles. The Court began by assessing reparations owed to the victims. The defendant recognised its obligations to pay reparations but argued that the reparations should be reduced because the driver was primarily responsible for the crash. The Court dismissed this argument because the driver was not a party to the proceedings, having already been charged under the Land Transport Act 1998, and because culpability is irrelevant to setting reparations. The Court ordered reparations of $100,000 for each of the families of the three people killed in the accident, and $50,000 to a passenger whose leg had to be amputated. The Court also ordered payments ranging from $8000 to $16,000 to 47 other passengers who suffered physical and psychological injuries from the accident. In assessing the level of fine, the Court considered the defendant's failure to ensure that dry hire vehicles were safe and compliant, its failure to provide proper information to drivers of dry hire vehicles on procedures in case of mechanical issues, its failure to provide a proper dry hire agreement, and the extent of the harm caused in the accident. The Court again dismissed arguments from the defendant that the driver was largely responsible, pointing out that although the driver was experienced, most of his experience related to bus-driving in an urban environment, rather than driving long distance, meaning that he obviously lacked the required skills and understanding of braking systems. The Court assessed the defendant as being of medium culpability and set the start point for fine at $400,000. With reductions for the amount of reparations paid, cooperation with the WorkSafe investigation, and guilty plea, the final fine was $210,000. Judgment Date: 20 September 2019.