Police v Truck Leasing Limited [2017] NZDC 15210 (21 August 2017)

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Hearing:	10, 11, 12, 13, 17 and 31 July 2017 1, 2, 3, 4, 7 and 9 August 2017
Appearances:	N Fletcher and C Piho for the Prosecutor P Mitchell and A Best for the Defendant
_Judgment:	_{21 August 2017}

[1] On 10 August 2015, on the North Shore in Auckland, the brakes in a Sterling brand rubbish truck (CYK705) owned by the defendant (“TLL”) failed on a hill, causing a crash which killed one of the operators, the “runner”, working on the truck.

[2] The defendant had leased CYK705 to Onyx Group Limited (“Onyx” later called Veolia Environmental Services (NZ) Limited, “Veolia”).

[3] Onyx had contracted with an Auckland local authority to collect, process and dispose of rubbish and, to do so, used a fleet of six Sterling trucks, including

[4] Under its lease to Onyx, TLL had retained responsibility for the maintenance of the trucks.1 Onyx was responsible for ensuring that TLL’s service schedule was complied with.

[5] In July 2011, TLL contracted N P Dobbe Maintenance Limited (“NPD”) to service and repair the Sterling trucks. NPD’s workshop was in Kumeu. Although NPD dealt directly with Onyx to get practical access to the trucks, there was no written agreement between them. Much of the servicing was done at Onyx’s yard in Whenuapai.

[6] As a result of the crash, the defendant faces a single charge pursuant to ss 18A(1) and 50(1)(a) of the Health and Safety in Employment Act 1992 (“HSEA”). More specifically, the allegation is that the defendant failed to take all practicable steps to ensure that a truck leased by it to another party had been maintained so that it was safe for its intended use (s 18A(1)(b)).

[7] The prosecutor alleges (by way of particulars in the charge and in opening the case) that there are seven practicable steps that TLL should have taken but failed to take. Those practicable steps are set out below along with the defendant’s position:

TLL failed to ensure that the brakes of CYK705 were safe and also compliant with the Land Transport Rule: Heavy-Vehicle Brakes 2006 (rr 2.2(4), 2.2(5), 2.2(6), 2.2(7), 2.2(8), 2.3(3), 2.3(11) and 2.3(14)).

By reason of the rigorous contractual arrangements entered into, TLL was a client of NPD and thus had a right to rely on the competence of NPD and that it was impracticable for TLL to physically check the work of NPD. In short, as a result of the arrangements in place, TLL

TLL did not know and could not have known that there was any problem with the ABS because it had been unlawfully disabled.

TLL failed to ensure that the servicing regime was adequate to keep CYK705 operating safely and that the divisions of responsibility for maintenance were understood by the parties (TLL, Onyx and NPD).

It was TLL’s belief that the service regime was adequate and the various parties knew exactly what their responsibilities were. It considered Onyx to be an experienced operator and believed that NPD had the necessary expertise.

TLL failed to ensure that a procedure was followed that removed unsafe trucks, including CYK705, from the road.

TLL failed to ensure that staff at NPD had access to the necessary facilities to maintain the safety of CYK705.

TLL’s position is that it was a client of NPD and that it was thus up to NPD to ensure that it had proper facilities and that NPD did have proper facilities as far as TLL was aware.

TLL failed to ensure that NPD was undertaking the repair work on CYK705 to an appropriate standard and that it was appropriately communicating about work completed and any outstanding safety issues to TLL and Onyx.

TLL’s position is that it was in daily contact with NPD and necessary work was being done and that it was not a practicable step to go further than that. TLL also submits that because of the size of its business, it was not possible or feasible for TLL to physically check work and the responsibilities only arose as between NPD and Onyx.

[8] In an overarching sense, TLL’s position is that it had in place rigorous contractual arrangements with both NPD and Onyx which required both of those well established commercial entities to adhere to proper maintenance plans. That left no need for any physical oversight by TLL. Put another way, the commercial contracts sufficed.

[9] TLL also says that there is a total absence of fault on its part. It is accepted that the law requires an employer to expect and cater for irrational or unthinking conduct by an employee, but here it says there was unlawful behaviour which went beyond what could be expected. This unexpected behaviour took the form of unlawful interference with the braking system of CYK705 and unlawful driving behaviour by the driver.

[10] In this judgment, I adopt the approach endorsed by Heath J in R v Sullivan:2

[12] I conducted this trial without a jury. In R v Connell, the Court of Appeal explained the extent of the reasons that should be given for a trial Judge’s verdicts.3 Generally, all that is required is a statement of the ingredients of each charge, any relevant rules of law or practice, a concise account of the facts, and a plain statement of the essential reasons why the verdicts have been returned. When the credibility of witnesses is involved and important evidence is either accepted or rejected, that too should be stated explicitly.4

Attorney-General5 (admittedly in the context of a judicial review) as follows:

[12] However, I agree with the submissions of Ms Copeland, for the Attorney-General, that the District Court is not required to refer to all the evidence before it.6 Judge Ronayne referred to aspects of the affidavits and cross-examination of Mr Laulu. He did not have to refer to everything. Mr Tenet has not identified any particular piece of evidence, not referred to, which would justify overturning the decision. As I have said in another judgment:7

Challenging the amount of weight placed on various factors by a decision-maker is less than propitious of a successful judicial review. It is a tacit acknowledgement that the decision-maker took a relevant consideration into account. It usually signals disagreement about the outcome of the decision without being able to impugn it.

[12] The prosecutor has the burden of proving the charges beyond reasonable doubt.8 The defendant does not have to prove anything. Proof beyond reasonable doubt is a very high standard of proof. It is not enough for the prosecutor to

_{persuade me that the defendant is probably guilty, or even very likely
guilty of the}

charge. I must be sure that all the elements of the charge have been proven before entering a guilty verdict. If, after careful and impartial consideration of the evidence, I am sure that the defendant is guilty I must find it guilty. On the other hand, if I am not sure of the defendant’s guilt, I must find it not guilty.9 A failure to meet the duty imposed by s 18A(1) attracts the liability in s 50(1)(a). This is a strict liability offence. Intention is not an element and, accordingly, a failure to comply with a duty

[13] In this case, the defendant called evidence. That evidence goes into the pool of evidence available to me, but does not shift the burden of proof.

[14] In coming to my conclusions regarding the facts, I am entitled to draw inferences. Any inference drawn needs to be a logical deduction from other facts that I have found proven.

[15] I remind myself that witnesses do not always remember every detail and variations are commonplace and not unexpected. I also need to take a commonsense but careful approach to the fading of human memory over time.

[16] Honesty and reliability have to be considered objectively, impartially and dispassionately. I have to appraise each witness in two ways. First, I have to appraise the honesty and reliability of the witness personally and, second, the credibility of the story told by the witness. I can, of course, accept all, some or none of the evidence of any particular witness. If I accept any evidence, I need then to consider what weight or value I ascribe to it.

[17] I may also take into account any interests that I perceive a witness might have in the outcome, whether the witness might have a motive to lie, exaggerate, distort or minimise what they say happened, and take into account any possible bias that a witness might have.

[18] I need to bear in mind the reasonableness, the coherence, the plausibility and the probability of events occurring as described.

[20] I remind myself that I am entitled to take into account the more nuanced aspects of evidence. The appearance, demeanour, sincerity and manner of a witness when giving evidence can be considered, but I warn myself that I ought to place very little weight on demeanour alone.

[21] Expert evidence has been given in this trial. The expert evidence is part of the overall picture created by all of the evidence.

(1) A person who hires, leases, or loans to another person plant that can be used in a place of work must—

(b) if he or she ascertains that it is to be used in a place of work, take all practicable steps to ensure that the plant is designed and made, and has been maintained, so that it is safe for its intended use.

[23] The objects of the HSEA are set out in s 5, a portion of which is set out below.

The object of this Act is to promote the prevention of harm to all persons at work and other persons in, or in the vicinity of, a place of work by—

(a) promoting excellence in health and safety management, in particular through promoting the systematic management of health and safety; and

(b) defining hazards and harm in a comprehensive way so that all hazards and harm are covered, including harm caused by work- related stress and hazardous behaviour caused by certain temporary conditions; and

It is clear that the Act adopts a preventive approach to maintaining and promoting health and safety in the workplace. Its principal object is to provide for the prevention of harm. To achieve this object employers are required to promote safety in the workplace and both employers and others associated with the workplace are subject to the duty to take all practicable steps to ensure such safety or ensure that employees and others in the workplace are not harmed. The fact that the primary obligation to procure safety rests upon the employer does not exonerate or diminish the responsibility of other persons in the other capacities recognised in ss 15 to 19 from discharging the statutory duty imposed upon them. Section 2(2) could not be more clear; the same person may represent two or more of these capacities; the same duty may at the one time be imposed on two or more persons whether in the same capacity or a different capacity; and no duty imposed on any person is to be diminished or affected by the fact that it also may be imposed on one or more other persons. The Act does not then adopt a prescriptive approach to the duties of those made responsible for safety in the workplace. It provides a comprehensive set of general principles but leaves the detail of acceptable practices to be worked out and implemented by regulations and codes of practice within the various industries.

Being a remedial measure, the Act should be read so as to attain the object of the legislation and to accord with the scheme of the legislation so far as the wording fairly and reasonably permits. See Harrison v National Coal Board [1951] AC 639, per Lord Porter at p 650. Section 5(j) of the Acts Interpretation Act 1924 dictates the same approach.

(1) In this Act, all practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to—

(a) the nature and severity of the harm that may be suffered if the result is not achieved; and

(b) the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and

(d) the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and

(2) To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about.

‘physically possible’ and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it can be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.

‘sacrifice’ referred to in Edwards. When this computation is made “it should not lightly be held that to take a practicable precaution is unreasonable”.

[33] The test of what is reasonably practicable is objective. It is not a question of whether the defendant actually foresaw the relevant circumstances, or whether it deemed the practicable steps submitted by the

prosecutor to be reasonable, but whether it was objectively reasonable to predict the relevant circumstances and take those steps. In Department of Labour v Solid Timber Building Systems New Zealand, Baragwanath J commented:

I construe the definition of “all practicable steps’ as essentially one of objective fact, viewing the matter at a stage shortly before the injury through the eye of an employer conducting the respondent’s operation and with the knowledge that such an employer could reasonably have been expected to possess as to the nature of prospective harm...

[34] The s 2A assessment of whether a step was practicable is not, however, “a counsel of perfection by hindsight”. While hindsight may provide a clearer picture of what occurred, it is not a proper basis for liability under ss 15 and 50.

[27] As to the wisdom of hindsight particular care is required. The High Court in

Whether a practicable step has been taken cannot be determined with the benefit of hindsight, or on what was known after the event. The relevant point in determining what is practicable is a point in time immediately prior to the incident.

Knowledge in the definition of “all practicable steps” refers to an objective assessment of what a reasonable employer would know about the matters referred to in s 2A(1)(b), (c) and (d) of the Act, not the employer’s subjective knowledge.

It is not necessary for the prosecution to demonstrate a causal connection between an injury to an employee and failure by an employer to take all practicable steps to ensure the safety of an employee while at work. An investigation is only likely to be initiated however after an injury has occurred.

Section 6 of the Act requires an employer to expect irrational or unthinking conduct from employees in some circumstances. Thus, an employer may, in

some circumstances, be convicted under s 6 under the Act for failing to anticipate and counter irrational or even disobedient conduct by employees. It is particularly relevant in this case that while an employee may contribute to his or her own misfortune, this does not necessarily absolve an employer from liability under s 6 of the Act.

I observe that the mere fact that any such irrational or unthinking conduct is also illegal does not, in itself, avoid the application of this principle.

[31] The foregoing observations relate to s 6 obligations of an employer. However, those same observations are applicable to obligations under s 18A. That is so because the observations relate to the definition of “all practicable steps” which is a phrase common to both obligations.

[32] reaso	The able d (i)	elements of the offence that the prosecutor must prove beyond oubt are: TLL leased Onyx plant. Here the plant referred to is the Sterling
		truck CYK705; and
	(ii)	CYK705 was capable of being used in a place of work; and
	(iii)	Before leasing CYK705, TLL had ascertained from Onyx that it was to be used in a place of work and that its intended use was for rubbish
		collection; and
	(iv)	TLL failed to take all practicable steps to ensure that the plant had
		been maintained so that it was safe for its intended use.

[33] There is no definition of “lease” in the HSEA, but there is no dispute that

_{[34] There is no dispute that CYK705 constituted plant as defined in the
HSEA.}17

17 Plant is defined in the s 2(1) as including a “vehicle” and any part or controls thereof.

[35] There is no dispute that the plant was capable of being used in a place of work. Likewise, for reasons which are self-evident it cannot be disputed that element “iii” above is established. Thus the real dispute is whether TLL failed to take all practicable steps to ensure that the plant had been maintained so that it was safe for its intended use.

[36] Pursuant to s 9 Evidence Act 2006, certain facts were agreed relevantly as follows:

(i) On 17 May 2016, Veolia pleaded guilty to, and was convicted of, an offence under ss 6 and 50(1)(a) of the HSEA by breaching its duty as an employer to take all practicable steps to ensure the safety of its employees while at work and in particular to take all practicable steps to ensure that plant, namely a fleet of Sterling refuse collection trucks, including CYK705, was maintained so that it was safe for its known intended use.

(ii) On 15 July 2016, Auckland Council pleaded guilty to, and was convicted of, an offence under ss 18(1)(a) and 50(1)(a) of the HSEA by breaching its duty as a principal to take all practicable steps to ensure that no employee of a contractor, namely Onyx Group Limited, was harmed while doing any work that Onyx Group Limited was engaged to do namely the collection of rubbish using refuse collection trucks, including CYK705.

(iii) On 15 July 2016, N P Dobbe Maintenance Limited pleaded guilty to, and was convicted of, an offence under s 15 and 50(1)(a) of the HSEA by breaching its duty as an employer to take all practicable steps to ensure that no action or inaction of any employee at work harmed any other person, namely users of the fleet of Sterling refuse collection trucks, including CYK705, that it was responsible for maintaining.

(iv) Toxicology tests carried out on the driver of CYK705 and on the deceased revealed no consumption of alcohol or any drug impairment.

(v) The system of maintenance for CYK705 was the same as for other vehicles in the Sterling fleet.

[37] The foregoing admissions regarding the convictions of other entities have been put before the Court “by way of background” and not pursuant to s 49 of the Evidence Act 2006.

[39] Mr Josling is a non-sworn police employee working with the Commercial Vehicle Investigation Unit in Auckland. He is a qualified A Grade mechanic and advanced automotive engineer. He is a New Zealand Transport Agency (“NZTA”) approved vehicle inspector.

[40] Another Sterling rubbish truck owned by TLL crashed on 16 August 2006. Mr Josling inspected that vehicle. It had failed to stop at a “Give Way” sign on a northern motorway off-ramp.

[41] Mr Josling inspected and assessed that truck and completed a report. His major conclusions were:

[42] Mr Josling also attended the crash of CYK705. Photographs he took of the truck using an infrared heat sensing device revealed that there was no heat reading from the brake drum on the right rear axle, indicating that that brake had not been operating functionally.

[43] On 18 and 19 October 2015, assisted by other police officers, he performed a safety audit on the remaining five Sterling trucks in TLL’s fleet. All five vehicles had multiple faults and all failed their inspections.

Other faults were found, but the above three would ordinarily have resulted in the truck being “pink stickered” resulting in it being immediately ordered off the road.

Other faults such as a crack in the chassis, a loose driver’s seat and excessive movement in the steering wheel were found. The two itemised matters above would have resulted in the vehicle being “pink stickered” and immediately ordered off the road.

Six other faults were found. The itemised faults above would also have resulted in this vehicle being “pink stickered” off the road.

Other faults were found, such as a seat belt anchor bolt being loose. The itemised faults above would have resulted in this vehicle being immediately “pink stickered”.

Six other faults were found with this truck such as on axle 2, the S Cam bush in the brakes was worn out, there were cracks in the chassis and lights were deficient. However, the itemised faults above would have resulted in this vehicle being immediately “pink stickered” off the road.

[45] Finally, Mr Josling took possession of and inspected the dashboard instrument cluster panel from CYK705. He noted that the ABS warning bulb holder and the bulb/warning light itself were missing.

[46] Ms Ludford is a police officer. She made observations of the scene of the crash. She measured the downward gradient travelled by the truck at around

20 percent. She noted that the wheels of the truck had struck the kerb on the way down the hill.

[47] Rubbish bags had been collected on the way down the hill and travelling down the hill the first uncollected bag was at number 48. The distance from there to where CYK705 ran off the road was approximately 127 metres. The road is a narrow sealed road but with either bush or bush and houses on the sides.

[48] The driver (whose name I have permanently suppressed) had the appropriate heavy truck driver licence since 1994. He also had a waste collection licence. He worked for Onyx and had had at least 50 hours training. He worked Mondays to Fridays inclusive. He was very familiar with the various routes followed and very familiar with driving Sterling rubbish trucks.

[49] Usually after arrival at work in the morning, the driver would find out which truck he had been allocated, pick up the keys for that truck and then go to the truck and carry out a vehicle check. He would carry out what he called a “walk around inspection” checking such things as operation of the indicators, the beacon, tyres, etc. Sometimes the driver would work by himself on a truck and sometimes he would be allocated a “runner” for the day. The deceased was his runner on the day in question.

[50] Rubbish collection consisted of stopping and starting at every letterbox using the footbrake to stop the truck and then the park brake to hold it. If on his own, the driver would get out of the truck and collect the rubbish bags, throwing them into a bin which would then hydraulically tip the bags into the compactor on the truck. On the day in question the deceased was carrying out the task of collecting the bags. He had driven the route in question on numerous previous occasions.

[51] The driver started between 7.00 and 7.30 in the morning. The driver thought that he got to Kauri Road a little before 11.00 am. He would thus have been driving the truck for at least three and a half hours. He said he was wearing ear muffs because of a hole in the exhaust which was very noisy and which also caused fumes to come into the cab. The driver also described leachate coming from the rubbish in the “trap box” falling onto the muffler causing further fumes. This happened because the trap box was rusty.

[52] The driver described the deceased being inside the left hand side of the cab when they got to Kauri Road. The truck has a low level entry and several steps from the left hand side for the runner to use. She was in that position holding onto the safety bar. From that position she was easily able to get out of the truck to collect rubbish bags.

[53] The driver said that when he was about halfway down Kauri Road, he stopped the truck and waited for the runner to finish loading bags into the bin. Once she had finished, he started moving off and a warning buzzer came on. He applied his footbrake, but it went straight to the floor. He then tried to engage his park brake and also tried to put the truck into reverse. The truck, as the driver described it, “...just kept on flying, flying down the steep hill.” The driver had bush on both sides of the truck and was yelling to his runner, the deceased, that he had no brakes. He did not think jumping from the truck was a safe option. When he got to a sharp turn, the truck left the road, crashing through bush onto its side killing the runner. The driver was trapped and eventually freed and taken to hospital. The driver said that the buzzer that came on was the warning buzzer telling him that he had low air pressure in the brakes. The brakes require air pressure to operate.

[54] The driver described himself as a careful and prudent driver who takes health and safety seriously. He accepted that rubbish collection is quite a dangerous occupation. He attended regular health and safety meetings at Onyx. It seems that the driver may have initially told the police some time after the crash that he had, on the morning of the crash, drawn to the attention of NPD a problem with air leaking from the braking system. He corrected that by explaining that that had been on a previous morning start when, after drawing the air leak in the braking system to the

attention of NPD mechanics, he was told to continue on because the truck would be taken off the road at a later time.

[55] The driver said that a warning light and a warning buzzer had come on on the morning of the crash which he drew to the attention of the Onyx mechanics. Pressed as to whether he in fact had a stop engine or check engine light come on on the morning of the crash, the driver said that that sort of buzzer would come on quite a lot and the mechanics would always tell him that when the sensor gets wet the buzzer would come on all the time. The driver said the problem never got rectified.

[56] The driver seemed to be somewhat confused between what he recalled of the morning of the crash and conversations he had had with mechanics on previous occasions. He said that he just kept on asking mechanics when CYK705 was coming off the road, but from the driver’s point of view it was just a waiting game and the truck kept working. The driver had told the police that he had taken the truck to NPD on the morning of the crash and had it checked, but when pressed as to when that had actually happened, the driver said that he had got his days muddled up during his interview.

[57] Mr Mitchell accused the driver of lying to the police in his interview. The driver responded that he had been confused and still upset at the time of his interview.

[58] The driver accepted that he knew that the truck was in very poor condition when he left the yard on the morning of the crash, but that he had kept on asking every day “when’s this truck coming off the road”. He described that exercise as like banging his head against a wall trying to get things done. He also described that when he was out doing a run on a previous occasion, the brakes did not feel right, so he called up and complained about that. An answer came three or four hours later saying that the brakes could not be readjusted because they were fully adjusted. He was told to carry on with his run. The driver denied lying to the police. He said that all that had happened was that he got his days mixed up regarding particular events and complaints about the truck.

[59] It seems that the driver does not have a specific memory about any ABS warning light on the morning of the crash. That is entirely consistent with the evidence that no light existed.

[60] It was suggested to the driver in cross-examination that there must have been obvious problems evident to a prudent driver with a leaky exhaust requiring earmuffs. The driver responded that he accepted that that was a problem, but he would report those sorts of things in the appropriate report form. He recalls specifically suggesting the need for a steel plate to be put over the hole to try to stop the fumes from coming inside and making him feel sick. He was told to simply carry on. The driver accepted that the fumes coming into the cab created a dangerous situation, but pointed out that it simply would not be fixed. The driver also accepted that an experienced driver would appreciate that the truck should not have left the yard that morning.

[61] Onyx operated a system of driver vehicle report forms referred to by the driver as DVRs. On a DVR dated 3 August 2015, the driver had reported in relation to CYK705 “a loud exhaust sound like a tractor and waste leaking onto the exhaust resulting in fumes in the cab.” The same form contained mechanics’ comments to the effect “need more time to repair hole. See me tonight when you finish.” On 5

August, in a DVR, the driver reported for CYK705 “exhaust very loud and causing fumes in and around cab. Right front trap leaking waste water”. On 7 August, the driver reported in a DVR for CYK705 “exhaust loud and causing fumes in and around cab. Right front trap leaking waste water”. Those were the same faults earlier reported which had not been remedied. The driver felt that he was banging his head against a wall metaphorically.

[62] Mr Wolf is a crash investigator for the Serious Crash Unit and has his own private business carrying out such work. He had, at the time, over 45 years experience in repair and maintenance of heavy motor vehicles and holds appropriate trade qualifications in automotive diesel mechanics and an advanced trade certificate

in automotive engineering heavy equipment. He holds a Certificate of Appointment from the New Zealand Transport Agency as a vehicle inspector with authority to carry out service inspections, Warrant of Fitness and Certificate of Fitness of light and heavy motor vehicles. He has had a vast range of experience. He has had, at times, responsibility for maintaining Land Transport Safety Standards, providing advice to operators, industry groups, vehicle importers and other industry members. He has carried out hundreds of post-crash vehicle inspections where non-compliance with vehicle standards or failure of components was suspected.

[63] On 30 July 2007, Mr Wolf carried out a post-crash inspection of a Hino rubbish truck which had been operated by Onyx. Mr Wolf found that on that truck a low air pressure warning buzzer had been disconnected from the electrical system. Brake effort imbalances, in other words, a difference in brake effort between one side of an axle and the other, were found to exist with this truck. Brake testing on the Hino revealed an overall service brake efficiency of 40 percent with the minimum legal requirement being 50 percent. Overall, it was concluded by Mr Wolf that the Hino truck had brake system defects that were a contributing factor towards the crash. The truck was not safe to be operated.

carried out fleet audits for vehicles in the Onyx fleet in September 2002 and April

2005, with the results being discussed with Onyx management at the time. Those audits identified defects similar to the defects found on the crashed Hino. The indications were that the changes that had been sought by LTNZ had not been implemented. This was taken up with Onyx Group which in due course responded that it had met with “FleetPartners” (a former name of TLL). In part Onyx reported to LTNZ on 26 August 2007 in these terms:

Met with FleetPartners and confirmed weekly brake checks would occur from then on and further discussed options for future improvements, for future improved maintenance standards across the whole Onyx fleet.

Met with FleetPartners and discussed COF failures. The requirement to pass all future COFs first time. Improve the quality of pre COF checks and options for improving the air system on Hino trucks.

[67] The purposes of Mr Wolf’s inspection of CYK705 were to establish whether there were any pre-existing mechanical defects which could have contributed to the cause of the crash and to report on the overall condition of the vehicle to establish whether it met the current Certificate of Fitness (“COF”) requirements and was safe to operate.

[68] Axles are counted from the front to the rear. CYK705 was a three axle vehicle. Mr Wolf noted that there were no significant temperature readings on the brake on the right side third axle, indicating that that was not operating at the time of the crash. There was no evidence of any heavy braking on the roadway.

[69] In the suspension, a number of defects which were not crash related but were maintenance related were found. These did not contribute towards the cause of the crash. The defects found were:

[71] The brake linings for axle 1 were serviceable. The automatic slack adjuster on the right side of axle 1 was not operating correctly and exceeded the recommended free stroke of 16 millimetres. The measured free stroke was

[72] The automatic slack adjuster on the left side of axle 2 was not maintaining the correct brake lining to brake drum clearance for this brake. The brake chamber push rod on the right side of axle 2 had separated from the threaded fork on the automatic slack adjuster because the lock nut that is required to secure the fork to the brake push rod was not fitted. In this situation, the automatic slack adjuster was no longer able to operate to maintain the correct clearance between the brake linings and the brake drum as there was no fixed connection between the brake chamber push rod, the slack adjuster yoke, and link to the adjusting mechanism of the slack adjuster. This brake was operating to a limited extent, but only because fortunately the end of the brake chamber’s push rod was contacting the end of the slack adjuster arm. This was a maintenance related defect and may have contributed towards the cause of the crash through reduced braking capacity at that wheel.

[73] The service and parking brake on the right side of axle 3 were not operating. The wheel turned freely with the parking brake in the applied position. The brake linings were not serviceable as they were worn beyond their minimum thickness and were not contacting the brake drum with the parking brake in the applied position. An examination of the brake assembly with the backing plate removed showed that the brake shoe rollers were sitting on the apex of the brake camshaft and the brake chamber push rod was fully extended by the parking brake spring. The braking surface of the brake drum was in very poor condition with deep grooves running around the brake drum and there was rust on the braking surface which indicated that this brake had not been operating for some time. The deep grooves on the braking

surface of the brake drum rendered the brake drum unserviceable. Mr Wolf commented that while this was a maintenance related defect, he believed it would have contributed significantly towards the cause of the crash because this brake was not operating at the time of the crash.

[74] The service and parking brake on the left side of axle 3 were operating but were in a similar state of disrepair to the brake on the right side of axle 3. The brake linings were worn beyond the minimum thickness and there were grooves around the braking surface of the brake drum and the brake shoe rollers were almost on the apex of the brake camshaft with the brakes in the released position. Complete failure of the service and park brake on the left side of the third axle was imminent if the vehicle had remained in service. The brakes on axle 3 had not been correctly maintained as required by ss 2.2(4)(b) and 2.2(6) Land Transport Rule Heavy Vehicle Brakes.

[75] Crash damage prevented a roller brake test from being carried out to measure the braking efficiency. Mr Wolf, however, arranged for the wheels on axles 2 and 3 to be towed a short distance on a level surface with the parking brake applied. On axle 2, both sides of the brakes failed to lock and the wheels rotated. On axle 3, the right hand brake failed to lock and the wheel rotated. The left hand brake on axle 3 locked initially, but broke free after the vehicle had moved less than half a metre and the wheel then rotated.

[76] Mr Wolf described the condition of the tyres on the third axle as “marginal”. They complied with the minimum tread depth requirements, but the outer edges of the retreads were worn very thin and were starting to lift off the tyre casing. The left hand outer tyre on axle 2 and the right hand outer tyre on axle 3 were underinflated.

[77] Mr Wolf identified six faults with the braking system of CYK705 that he believed contributed towards the cause of the crash. He identified seven

maintenance related defects which he did not believe contributed towards the cause of the crash, but which would each alone have caused CYK705 to fail a COF inspection. It was Mr Wolf’s conclusion that the truck did not comply with the requirements to pass a COF inspection and was not safe to operate at the time of the crash.

[78] Mr Wolf was of the opinion that CYK705 had very serious braking defects and, given its weight and the gradient of the road, that once it was moving it did not have the ability to stop on Kauri Road. He further commented that roadside rubbish collection is well known to be hard on brakes and that brake maintenance and adjustment is therefore very important. In the circumstances, Mr Wolf considered that there was no excuse for CYK705 to be in the condition that it was on the day of the crash. It had not, in Mr Wolf’s opinion, received adequate servicing. It was Mr Wolf’s view that it had not received adequate servicing for “weeks extending into months”. He said that if proper brake inspection had been carried out on a weekly basis there had been plenty of opportunity to identify the faults and remedy them. He was definite, in his opinion, that the brake defects on CYK705 had not just become apparent on the day of the crash.

[79] Mr Wolf was asked to comment on a “preventative maintenance schedule” (“PMS”).18 This schedule is in the form of a check sheet for weekly checks, an “A service every 100 hours” and a “B service every 300 hours” and then a further check every 1,200 hours. The allocated hours for each of these weekly, A, B and authorised 1,200 hour checks was respectively 0.75 hours, 1.5 hours, three hours and four hours.

[80] Mr Wolf did not believe that 0.75 hours was an adequate amount of time for the weekly check of brakes, lights and a general check. He thought one and a half hours would be more appropriate. Further to this, Mr Wolf commented that such things as brake checks should be carried out on a level concrete floor and that carrying them out on a gravel surface in an open yard is inappropriate. Carrying out such checks at night by torch light in a gravel yard without the use of “creepers” and

_{where vehicles had not always been washed down would affect the quality
of the}

servicing work. He opined that such conditions are an inappropriate place to carry out maintenance or safety checks. Furthermore, some aspects of brake checks should be carried out by two people. For example, someone needs to operate the brake pedal while someone measures the amount of travel in the brake push rod.

[81] Mr Wolf commented on two other vehicle condition assessments carried out on other Sterling trucks in the fleet. On [registration 5 deleted], an inspection was carried out on 13 February 2015. For this truck, at least 10 COF items were identified. In respect of each item, the truck would have failed to obtain a Certificate of Fitness. On 30 May 2015, a Sterling [registration 2 deleted] had a vehicle condition assessment carried out. In respect of numerous items it would have failed its COF.

[82] Mr Wolf then commented on several vehicle condition assessments (“VCAs”)

[83] On 17 August 2013,19 on a roller brake machine there was imbalance between one side and the other for each axle. There was what Mr Wolf described as a “huge brake imbalance” for the first and third axles. Overall brake efficiency was adequate.

[84] Mr Wolf noted that there was surplus air use on application of the brakes during this assessment. Other faults were detected such as loose, damaged or worn suspension parts. Worn brake linings and movement at a steering shaft were also detected. An air leak and brake imbalance also needed to be remedied. Overall, the braking effort met requirements.

[85] CYK705 was again the subject of a VCA on 15 February 2014. An item noted in the first inspection referred to above again arose in this inspection, namely an excess movement between steering wheels (the truck has dual control). Other

[86] CYK705 was again the subject of a VCA on 22 August 2014. Air leaks were detected in the braking system. This, in Mr Wolf’s opinion, was a recurring fault. Again, excess movement between steering wheels was detected. For the third time, the vehicle had defects in its steering box which Mr Wolf considered a significant and serious issue. Mr Wolf was of the opinion that every six months the same faults were recurring with this vehicle.

[87] On 26 February 2015, CYK705 was the subject of another VCA. This was the last assessment before the crash. A defect in the left front wheel bearing and king pin was noted. Mr Wolf said that this is considered a serious defect and would result in a failure to obtain a COF. Further faults such as rear air bags being loose had reoccurred. A number of the defects detected on 26 February would have resulted in a failure to obtain a COF for the truck. CYK705 obtained a COF for the last time on

[88] Mr Wolf also commented on the inspections of the balance of the Sterling fleet of five vehicles.20 Mr Wolf explained that the “ABS” anti-lock braking system is designed to prevent wheels locking when braking and to make sure that braking is even across the vehicle. This is a basic safety system and it needs to operate, said Mr Wolf. Each and every Sterling truck had inoperative ABS braking. Each of the trucks would have been ordered off the road immediately with inoperative ABS braking and other faults. This, said Mr Wolf, painted a picture of recurring, ongoing serious defects with the maintenance of the fleet.

[89] In cross-examination, Mr Wolf seemed to accept that there was a possibility that bulbs in the ABS warning light system may have been removed to avoid alerting the drivers to a problem with the ABS system. He accepted that disabling the warning system in that way would be an unlawful act.

[90] Mr Wolf accepted that while the right rear third brake assembly was not working, the remaining brake assemblies were working to some extent. He did not, however, accept that, had the ABS braking system been operating, the crash could

_{have been avoided. In any event, Mr Wolf did not see any sign of wheel
lockup on}

Kauri Road. Mr Wolf did, however, accept that it was not specifically his function to examine the roadway.

[91] Mr Wolf reiterated in cross-examination that, for the type of work being carried out by the fleet of Sterling trucks, the brakes on CYK705 had lacked the servicing that they needed for a period exceeding a month and probably several months.

[92] Mr Wolf was taken through evidence of various work carried out on CYK705 in the weeks and months leading up to the crash. It seems that a weekly check was done on 6 August, four days prior to the crash. Mr Wolf said that the documentation, however, did not show a maintenance schedule but rather a record of repairs. The documentation was not a programming document. Rather, it was reactive repairs carried out. Mr Wolf accepted that on 10 August what occurred was not a catastrophic failure, but that as far as the braking system was concerned, there were issues that had been there for some time. Mr Wolf pointed out that, if he had a vehicle coming back with VCA reports as shown for CYK705, he would be ashamed of his maintenance workshop. He would question what the maintenance staff were actually doing.

[93] It was put to Mr Wolf that another expert would criticise the fact that a rolling road test of the brakes was not carried out. Mr Wolf responded that the damage to the vehicle was such that the brake pedal and accelerator pedal and the whole front of the vehicle were jammed up. The brake pedal was jammed against the damaged floor structure and could not be operated. The dashboard had been removed or dismantled by emergency services. A number of brake lines and electrical cables had been cut. The front axle was not attached securely to the vehicle. As a result of the overall state of the vehicle, Mr Wolf assessed that a very significant amount of reinstatement work would be required to get the vehicle back to a stage where it could be safely roller brake tested. He had, therefore, decided to carry out an initial inspection without disturbing the brake wheel hubs or the brake adjustments or the brake components. He did that manually. By doing so, he was able to establish what condition the brake linings and brake drums were in. He was, however, able to have the vehicle towed across a yard with the park brake applied. If the parking brake had

been operating correctly, the wheels would have locked and skidded in that test. They did not. It was his considered opinion that a roller brake machine would not have resulted in different findings from his. He remained quite confident that, given the weight of the vehicle, the gradient of the hill and the conditions in which it was operating, the brakes were not capable of stopping the vehicle once it was on the way down the hill.

[94] Mr Wolf was asked to comment on other expert evidence to come regarding the inability to know for certain whether the refuse load was exceeding the specified weight per axle. He was unable to usefully comment on that, but, in that regard, I have the evidence of the driver. There is no reliable evidence suggesting that the truck was overloaded.

[95] Mr Wolf was asked about an air dump switch. The driver said he never used such a switch.

13 weekly services over a period of greater than 24 weeks. Three A services are reported for a period greater than six months with five B services taking place and no C services.

[97] Mr Bevin is a police officer with many years experience in heavy motor vehicle crash investigation. He is appropriately qualified. His experience and qualifications were not challenged.

500 metres ending in a 90 degree left hand bend into Hebe Place. It was at that corner that CYK705 left the road.

[99] Mr Bevin described tyre marks on Kauri Road caused by CYK705 veering rather than braking.

[100] From an activity report from the GPS system in the truck, it was apparent that the truck began travelling somewhere between 7.00 and 7.30 in the morning. It is also apparent that the crash occurred a little before 11.00 am.

[101] It appeared that the truck was travelling at approximately 46 kilometres an hour immediately prior to the crash.

[102] It was also apparent from the GPS data from the truck that the driver’s initial recollection that he had taken the truck that morning to NPD cannot have been correct.

[103] Mr Corbett is a diesel mechanic with almost a decade experience. He inspected CYK705. He was initially asked to plug in a diagnostic laptop, but was initially unable to because of the damage to the truck.

[104] Mr Corbett was able to remove the ABS brake control unit out of the truck for diagnosis. He is not an ABS system expert, but is trained in the basics of ABS and brake systems and fault diagnoses. He is experienced with Sterling trucks. By plugging the ABS control unit from the crashed truck into another compatible truck, he was able to download some data from it. He produced a report.22

[105] Some ABS faults were recorded in the control unit for CYK705. If a fault continues, then it is counted each time the vehicle is powered up by switching on the ignition. So, if a fault exists over, say, five days and the truck is only switched on and off once on each of those five days, then five such faults will be recorded. Three separate faults in the ABS system were each recorded 127 times and one fault 24 times. One of the faults recorded 127 times was a problem with the ABS warning light which Mr Corbett thought would indicate that the bulb was either missing or blown. Mr Corbett thought that on a minimum of 127 times when the truck was

[106] Mr Naidu was formerly a mechanic working for Onyx in 2015. He worked there for about a year and a half. He had until then been a mechanic working on heavy motor vehicles for about 10 years.

[107] Some of the work done by Mr Naidu he described as “full maintenance” whereas with other fleets used by Onyx the work was limited to body and cabs. He described working on the Sterling fleet and the Hino fleet, but said that the work was not mechanical.

[108] He thought he had some involvement with CYK705 on the morning of the crash. 10 August 2015 was a Monday and he thought that they may have “jump started the truck”. Quite a few vehicles would have flat batteries on Monday mornings. I did not take Mr Naidu’s evidence to consist of a specific recollection of jump starting the specific truck CYK705. He did, however, start a few trucks that morning. However, if a buzzer did continue to sound, NPD would be notified.

[109] Mr Naidu described the general arrangements for repairs being carried out by NPD. Sometimes they would do work at the Onyx yard and sometimes take a truck back to their own premises.

[110] Mr Naidu said that he had not seen any ABS warning light in the cabs of the Sterlings and did not know that they were ABS fitted until told after the crash that they had been tampered with. Mr Naidu had never seen an ABS warning light come on on CYK705. I took his evidence to be that, while he may not have had a specific recollection regarding CYK705, he had never seen any ABS warning light come on on a Sterling.

[111] Mr Naidu described a “lock out procedure” used at Onyx. If a truck was deemed unsafe it would be locked with a chain and padlock with the key then being placed on a lock out board and there would be a note in a book that the truck was “not going”. Mr Naidu said the lock out procedure was used for the Sterling trucks. Once a truck is locked out it cannot be used unless the fleet manager overrules the

lock out procedure. Mr Naidu said this overruling happened on quite a few occasions. Mr Naidu said that his own decision to lock a truck had been overruled on quite a few occasions. He recalled one particular occasion where he had locked a vehicle, but been overruled. The truck had gone out delivering and got stopped by the Commercial Vehicle Enforcement Unit and got a “green sticker” and then came back to the yard for the same defect to be repaired. This had occurred after the Sterling fleet was grounded and so Mr Naidu’s recollection is that this happened with a Hino truck. Mr Naidu recalled being overruled after locking out a Hino truck because of an ABS fault. The fleet manager had let that truck go out on the road. Mr Naidu said these things happened both before and after the crash of CYK705. The fleet manager was Craig Langson.

[112] Mr Potterton has been an auto electrician for 43 years and holds the appropriate qualifications and trade certificates. He has worked in the heavy vehicle industry for approximately 30 years. His business provides services to the Onyx Group and has done for about 14 years. He usually deals with Mr Langson. Mr Potterton has also provided services to NPD.

[113] Electrical work provided to Onyx would include work inside the cabs of the trucks. He had never been asked to carry out any work on any ABS warning lights in the trucks prior to 10 August 2015. Any work carried out on the Sterling fleet would be invoiced to TLL. The procedure would be that TLL would be telephoned, an order number would be given after the job and price for it was explained.

[114] Mr Potterton carried out an assessment of the Sterling fleet in October 2015 except for CYK705. Specifically, he was asked to check the ABS system. He noticed that the warning lights were not all working. Mr Potterton thought that some of the ABS bulbs were working.

ABS warning bulbs to have simply blown across all six of the trucks in the fleet.

[116] Mr Dobbe is one of two directors and owner of NP Dobbe Maintenance Limited (“NPD”). He has operated his business since 1980. At the time of the crash, Mr Dobbe was fully involved in the day-to-day work of his company. He is a certified trade mechanic and has been for many years. At the time, his business employed 11 mechanics. They included Mr Khan, his son Warren and Bryce Olliver. They, too, are trade certified mechanics.

[117] NPD entered into a contract with TLL. That occurred in 2011 after TLL approached NPD to service and maintain a fleet of concrete trucks and also a fleet of rubbish trucks. The rubbish trucks, included the Sterling fleet and specifically CYK705.

[118] Pre-contract discussions involved references by TLL to their dissatisfaction with the previous provider, prior “OSH incidents” and dissatisfaction with the price and cost of running the vehicles previously. It was Mr Dobbe’s understanding that any maintenance work would predominately be done at NPD’s workshop in Kumeu.

[119] Part of the arrangement, as understood by Mr Dobbe, was that Onyx would provide a concrete work surface. It was also understood by Mr Dobbe that his business would be required to carry out the A, B and B plus or C services predominately at his own yard. That arrangement did not find its way into the eventual written contract.

[120] The contract was signed on 26 July 2011.23 The written contract made reference to a separate “service level agreement – maintenance providers”. Such a separate agreement was never entered into. However, the contract went on to say that in the event that a service level agreement was not entered into between TLL and NPD then NPD must follow the manufacturer’s recommendations when carrying out servicing or repairs of a heavy commercial vehicle. With regard to the Sterling

(l) A requirement that NPD place TLL service stickers on the inside of vehicle windscreens prior to return to the client;

(p) A requirement that if any vehicle requires parts to be replaced, NPD must provide a list of those parts to TLL and that TLL may, at its discretion, provide those parts directly to NPD with NPD then being required to fit the parts to the vehicle as requested.

(ii) Clause 5.3 required NPD to acknowledge that TLL would not be liable to pay invoices for unauthorised work.

(iii) Clause 5.4 required NPD to maintain a record of all work carried out in respect of any vehicle and that NPD had to make that record available to TLL within two business days of being required to do so.

[122] NPD was never provided with service stickers, so they used their own. [123] TLL did ask for worksheets for previous work from time to time.

[124] NPD warranted that it would carry out work with due care and skill and that it would be fit for the purpose for which it was supplied.

[125] The contract prevented NPD from subcontracting the provision of any work without the prior written consent of TLL.

[126] While the contract required NPD to obtain authorisation from TLL before commencing any work, after hours call-outs were to be charged at agreed rates. Call-out work did not require prior authorisation so long as NPD provided to TLL all relevant information regarding after hours call-out work at the earliest possible time after the event. Key performance indicators in the contract required, inter alia, NPD to provide a two hour response time to attend any breakdowns and communicate within three hours all relevant details of the breakdown to TLL maintenance controllers.

[127] Mr Dobbe confirmed that the servicing requirements for the Sterling fleet were set out in a brief document.24 A completed copy of the schedule was required to be attached to any invoice. NPD was required to look after brakes and suspension, amongst other things, whereas tyres remained Onyx’s responsibility.

[128] The “preventative maintenance schedule” required authorisation to be obtained prior to any service being carried out. In practice, issues arose when work was carried out without authorisation. There were times when TLL refused to pay for unauthorised work.

[129] Mr Dobbe confirmed that while A, B and C services were generally done in NPD’s workshop, the weekly services were done in Onyx’s yard, often in the dark or in a puddle. He did, however, accept that sometimes A and B services were

[130] Mr Dobbe said there was no significant brake testing carried out in any of the tests with the exception of an occasional skid test or a drive test, but these depended on the DVR. Brake inspections were otherwise limited to visual inspections. No roller brake testing machine was available.

[131] Mr Dobbe commented that he estimated that a rubbish truck would have approximately 2,000 brake applications per day whereas any other typical metropolitan truck would have between 289 and 340 brake applications per day. He, therefore, commented that roller brake testing would have been very advantageous.

[132] While not entirely agreeing with Mr Wolf’s view that the 45 minutes allocated for a weekly check was inadequate, Mr Dobbe thought that the time allocated was “minimal”. The time allocated left no margins. Mr Dobbe did not think that the payment rates were adequate, but that the times allocated for each task were.

[133] Dashboard lights were not something NPD thought it had a responsibility to check leading up to the date of the crash. He was unaware of the removal of any ABS warning lights. Had he been asked to remove any ABS warning lights he would have refused to do so.

[134] Mr Dobbe made some general observations about the fleet of Sterling trucks. He described them as quite worn out, having been in service for approximately

10 years. They required a high level of maintenance and repair. The difficulty as he saw it was that, with changes to the governance of the Auckland area, there were no long-term contracts being offer by the councils and it was thus impractical financially to replace fleets of rubbish trucks when only short-term contracts were on offer. As a truck ages, it becomes uneconomic to repair it.

[135] In addition to their general configuration compared with other brands, the Sterling trucks, in Mr Dobbe’s opinion, were also unsuitable for rubbish collection work because of “suspension issues”. Modifications had been made to the rear suspension of the Sterlings and were not done properly in Mr Dobbe’s view. The modifications were such that air could be removed from the third axle’s suspension

resulting in there being no downward pressure on the third axle, leaving all of the downward pressure on the second or drive axle. This caused repetitive problems with the suspension. Manoeuvrability was improved, but the modifications were detrimental to braking.

[136] The loading on the third axle could be reduced using a driver operated switch.

[137] Mr Dobbe raised concerns about this system which gave rise to the need for repetitive repairs and regularly cracked cross members, broken suspension springs and other damage. No corrective measures were taken. These concerns were raised with both Onyx and TLL.

[138] Mr Dobbe did not think that the amount spent on maintenance of the Sterlings was sufficient. He thought that the approach taken was more of a repair programme than a maintenance programme. He said that a great deal more money was spent on the trucks after the crash than was spent before. Approximately

$11,000 a month was spent over the six Sterling trucks prior to the crash and $30,000 was spent in the month following the crash.

[139] Mr Dobbe said that, to his knowledge, drivers were driving the Sterling trucks knowing they had faults. He did not believe that this should have been happening, but said that in what he described as the “industry” there was pressure to get the job done.

[140] Asked to comment on Mr Wolf’s opinion that the Sterling fleet showed a number of serious reoccurring faults amounting to at least COF failures or even “pink sticker” items, Mr Dobbe commented that he thought a lot of the faults were typical of this type of vehicle. He said that, while he did not entirely agree with all of Mr Wolf’s findings, there were always things wrong with the trucks. Drivers were not always aware of the faults.

[141] In the months leading up to the date of the crash, NPD was having difficulty

getting the fleet serviced and NPD’s role was cut back from servicing 13 vehicles to

servicing six. Onyx was running a minimum number of trucks for the work required with the result that NPD struggled to get access to trucks because the trucks were often being “double-shifted or coming in late...”. That was occurring in the last six to eight weeks leading up to the crash.

[142] In the early period of NPD’s contract with TLL the working relationship was described by Mr Dobbe as generally quite good. The relationship, however, deteriorated. He had difficulty working with Mr Benadie. He described TLL as being cost conscious. Mr Dobbe said that the trucks were getting dearer and dearer to run and communications with TLL were getting more difficult. TLL began disputing invoicing. He, for example, described one incident where Mr Benadie was so obnoxious it reduced him to tears.

[143] Mr Dobbe thought that the attitude of TLL, regarding the authorisation of work, had a negative impact on the condition of the fleet.

[144] At the beginning of the contract between NPD and TLL, Mr Dobbe had an expectation that, apart from weekly services, other services and work on the trucks would be done at his workshop. That did not occur. Within the first five months of their contract, NPD started working more at Onyx’s yard or having to collect trucks and return them to Onyx. Because this became a financial burden on NPD, Mr Dobbe raised this, but was told by Mr Benadie that that was simply the way it was. It was suggested to Mr Dobbe that he could “split invoice”. By that it seems that it was suggested to NPD that some costs could be invoiced to Onyx. NPD’s contract was with TLL.

[145] Mr Dobbe said that TLL were predominately using the VCA as their repair list. It seemed that Mr Dobbe had the impression that TLL was more intent on carrying out a repair at a certain mileage rather than at a point when the repair was needed. While there were no specific refusals to authorise repairs, Mr Dobbe nevertheless was of the view that repairs were not done if they could wait until the VCA. It seemed that TLL wanted to carry out repairs when a part was worn out as opposed to simply worn.

[147] Mr Dobbe accepted that NPD had pointed out to a driver that the brakes on CYK705 needed repair two weeks prior to the crash, but that the repair had been overlooked. Repair of those brakes could have been done in an evening.

[148] Mr Dobbe confirmed that TLL and Onyx had adopted a practice of presenting trucks for a VCA prior to presenting them for a COF inspection. That seemed to be a manipulation of the system to ensure a high operator rating. The rating is better if vehicles readily pass COF inspections without faults, yet any number of faults could be detected in a prior VCA without affecting operator rating. Earlier in their relationship, trucks were being presented for a VCA about two weeks prior to a COF inspection, but Mr Dobbe indicated that in the latter stages of their relationship, this gap in time was getting down to just a couple of days or even at the point where the COF had expired because of a lack of vehicles.

[149] Typically, the VCAs would detect the Sterlings’ suspension issues, brake issues and the like. Mr Dobbe described aspects of the truck that were listed on a VCA as “vast and numerous”. He said that braking and suspension issues were expensive components and often listed in VCAs. Once a VCA had been carried out, repairs would be done with the truck then presented for a COF. Mr Dobbe also thought that TLL would be penalised under its contract with Onyx if a truck was off the road for any extended period.

[150] Long lists of defects arising from a VCA for the Sterlings was not a surprise to Mr Dobbe because of the high “production” of the trucks and the unsuitability of the trucks.

[151] At times, said Mr Dobbe, TLL queried why faults were being repetitively detected in VCAs. TLL would often say to NPD that they were not making money and asked whether a repair could be done more cheaply. Mr Dobbe indicated the need to get better trucks because the Sterlings needed replacement. TLL’s response seemed to be that, because Onyx did not have a contract, the trucks would not be replaced.

[152] Mr Dobbe said that the A, B and even C services did not enable inspection of the vehicles to the same standard required for a VCA or COF.

[153] Mr Dobbe described, in the latter stages of NPD’s relationship with TLL, having difficulty getting access to the trucks to carry out necessary servicing work. His view was that they simply did not have enough trucks to do the jobs required. Because of a lack of availability of the trucks, service periods would sometimes go over the specified times. These problems of getting access to the vehicles were raised with Onyx and TLL. Occasional group meetings occurred. Access problems had not resolved by the time of the crash in August 2015. The access problems were such that Onyx offered to pay to have mechanics waiting, but the offer was for an amount less than the actual cost.

[154] Mr Dobbe described the working conditions at the Onyx yard as unsatisfactory. Often trucks would have to be inspected by torch light and in poor and dirty conditions. Mr Dobbe did not think these poor working conditions prevented the preventative work being carried out such as brake adjustment and inspection. However, it did make the work more difficult. However, Mr Dobbe did say that from time to time some work would be skipped because of the working conditions. Generally, Mr Dobbe believed that the weekly services were being carried out, albeit in unpleasant conditions. These poor conditions were raised at a joint meeting with TLL.

[155] Such were the conditions that Mr Dobbe gave consideration to terminating his contractual arrangements, but, because he thought that the contract was not going to last much longer, he wanted to, as he put it, “...do the dutiful thing and try and keep my end of it square”.

[156] Mr Dobbe described often having to debate with TLL the timing of work and invoices for it. NPD would be questioned regarding work carried out at too short an interval or work taking too long to complete.

[157] While it seemed to be Onyx’s responsibility to notify service requirements to

NPD, TLL would also, it seems, become involved because it had a database whereas,

according to Mr Dobbe, Onyx did not keep records in order to know when services were due.

[158] A driver reporting system (DVR) operated whereby drivers would report defects on a DVR sheet. These DVR sheets would then be reported by Onyx to NPD. However, Mr Dobbe said that the DVR reports would very seldom ever be reported before the end of a working day. Put another way, Mr Dobbe said that his company would not know until 4.30 pm or later of any defects reported regardless of whether the defect was noticed by the driver at eight in the morning or any other time during the day. However, in most cases, NPD mechanics would retrieve the DVR reports to see what was required.

[159] While Onyx had mechanics on payroll, Mr Dobbe stated that their main responsibilities were the hydraulics and compaction components.

[160] Where defects were noted on the VCAs, Mr Dobbe stated that vehicles would not always be immediately sent for repairs, with some continuing to be used in the meantime.

[161] According to Mr Dobbe, Onyx had responsibility for notifying NPD when A, B and C services were needed. However, in practice, NPD estimated when services were needed based on their understanding of how often and for how long the trucks were being used. This schedule was not checked by TLL.

[162] Mr Dobbe gave similar evidence to that of Mr Naidu regarding the lockout procedures used at Onyx. He concurred that lockouts could be overridden by Onyx, but stated that he did not believe TLL was advised in any way when this happened.

[163] When asked whether he had raised any of his concerns around facilities and getting repairs authorised with Onyx and TLL, Mr Dobbe replied that, at the time of the crash, it had been “quite some time” since the last group meeting, and that he had not considered raising his concerns in any other way.

[164] Mr Dobbe stated that NPD no longer works with TLL, with their contract having been terminated by TLL just prior to this trial.

[165] Mr Dobbe stated that their work on the Sterling fleet was hampered by financial pressures from both Onyx and TLL, with NPD being expected to do repair work as cheaply as possible.

[166] Mr Dobbe corroborated Mr Khan’s evidence that he had brought a fault with the brakes of CYK705 to Mr Dobbe’s attention on about 28 July 2015. Mr Dobbe characterised the third axle brakes as being at the point of needing servicing to be scheduled in the short-term, but that the truck was still fit to continue to work. He stated that trucks in that condition in the past had been locked out until repairs were made, but that was not done in this case. CYK705 was subsequently serviced by NPD on 6 August 2015, though the issues with the third axle brakes were not identified or remedied at that time. Mr Dobbe put this down to the inspection being carried out at night and in difficult conditions. Mr Dobbe agreed that the defects identified by Mr Wolf after the crash were not picked up when CYK705 underwent a safety check on 6 August, but noted that this could have either been overlooked or the defects may not have been present at that time.

[167] When asked about the conditions of the vehicles, Mr Dobbe stated that they were always driven with a number of defects present, as the nature of the work meant that they were consistently requiring ongoing repairs and maintenance. He did not think the defects on CYK705 had been present for months or even weeks, but suggested that the defect may have accelerated over a short period of time due to the intensive way the trucks were used.

[168] When asked about whether any change in maintenance practices could have identified the defect in CYK705 before the crash, Mr Dobbe indicated that there was limited ongoing training available and a lack of product specific knowledge throughout the industry. NPD’s knowledge around when and how the Sterling trucks had to be maintained was experienced-based from working with the trucks over a period of time, rather than via proactively provided information.

[169] Under cross-examination, Mr Dobbe confirmed that TLL had contracted with NPD because of concerns around the workmanship and lack of maintenance provided by the previous providers contracted by TLL. When NPD were initially contracted, TLL expressed an intention not to compromise on safety. The contract between NPD and TLL required that NPD get authorisation from TLL before carrying out work on the vehicles, and that genuine manufacturer’s parts were required to be used.

[170] In practice, Mr Dobbe stated that when maintenance was required they would try to contact the TLL maintenance controllers to gain approval for the work. However, if the controller was unable to be contacted, they would go ahead with the proposed maintenance, in order to keep the truck available for Onyx to use. Mr Dobbe also stated that pre-advising TLL often would not be practical when maintenance was being carried out after hours.

[171] Mr Dobbe also later noted that recommended parts were not always used. Rather, on the advice of Mr John Gibbons from “Brakemax”, alternative parts were sourced because the recommended parts would not last as long as expected. Mr Dobbe described Mr Gibbons as gifted and very knowledgeable about brake repairs and maintenance.

[172] Mr Dobbe stated that the mechanics’ weekly checks of the trucks would not include checking the ABS braking system, or checking whether the ABS indicator light turned on when the truck was started. He stated that he was unaware that none of the Sterling fleet had working ABS indicators and denied that anyone at NPD had been involved in removing the ABS indicator bulbs. He noted that NPD had been required to repair faults with the ABS sensors, which was a regular problem.

[173] Mr Khan works as a mechanic at NPD working on heavy motor vehicles. He has been a mechanic for about 10 years. He had worked on the Sterling fleet for several years up to the date of the crash.

[174] Mr Khan described some difficulty at times in servicing the trucks in the evening before finishing work.

[175] Mr Khan said that he performed work on the Sterling trucks at the Onyx yard which is a gravel ground where all of the check-ups would be carried out. He described the area as consisting of potholes full of water when it was rainy. He and his workmates complained about the working conditions, including bad smells from rubbish tipped from trucks. He described using a torch because of a lack of lighting and described the facilities as very bad. Only one person at a time would work on any particular truck. The trucks would come unwashed to be worked on. Mechanics’ creepers would not work under the trucks on the gravel.

[176] The NPD mechanics would follow the preventative maintenance schedule sheets25 which would be given to them by Warren Dobbe.

[177] Mr Khan carried out some repairs on CYK705 on about 28 July 2015. He went to a street in Birkdale to carry out the work. The problem was air leaking from a hose. The truck had broken down and Warren Dobbe sent Mr Khan to carry out the work. Somebody had poorly repaired an air hose using a cable tie and not properly replaced a joiner. He thought Bryce Olliver, an NPD mechanic, had carried out that repair. Once Mr Khan had repaired the hose he was told by the driver that the brake was not holding the truck on hills. While adjusting the brakes on the third axle, he found that the brake lining was low. He told the driver that the truck was not safe to drive, that he could not go to the refuse station to unload the truck, and should instead go straight to the Onyx yard to enable the brakes to be repaired. The truck was driven to the Onyx yard and Mr Khan then drove to the NPD yard and drew to Nick and Warren Dobbe’s attention the need for the brake lining on the truck to be repaired immediately. Mr Khan had nothing more to do with the truck.

2015. It relates to CYK705. That DVR had driver comments to the effect that the truck was not holding on hills and that the brake needed adjusting.

[179] Mr Ross worked at Onyx on and off for around eight years. Initially he was employed by Onyx as a refuse driver (including at the time of the crash), but later was an operations supervisor during his last seven months at the company. Mr Ross stated that he had driven all of the Sterling trucks used by Onyx, including CYK705.

[180] Mr Ross was asked to detail the standard routine he would follow when checking trucks over prior to driving them. Drivers would be allocated a truck for the day, and would first pick up the keys and DVR book before checking over the truck. This check included looking over oil and water levels, tyre pressures and lights, and a brake test. A low air warning system for the brakes would go off every morning, while the brakes built up air. If this warning did not go off, the driver would advise the mechanics.

[181] Drivers would also hold fortnightly ‘toolbox meetings’, which would cover

2015, when a hose associated with the braking system disconnected. A mechanic from Onyx was called out to where the truck had broken down, and reconnected the hose. However, later on the run, the hose disconnected again while the truck was going down a steep hill road. Mr Ross described having to coast down the hill and put the truck in reverse to get it to a flat, safe area to stop. Mr Khan from NPD was sent to repair the truck. Mr Khan told Mr Ross to take the truck straight back to the yard, where Mr Khan would follow.

[183] As the trucks were constantly stopping and starting during their rubbish runs, Mr Ross said that the low air warning would go off several times a day. Drivers would then pull the truck over until the air pressure built up sufficiently to continue. He stated that if the air pressure got too low, a mechanism would prevent the truck from moving until enough pressure built up.

[184] He also described having to sometimes put the Sterling trucks into reverse gear to hold it when stopping while going downhill, particularly when the truck was carrying a load. Drivers would use the brake to stop the truck, but when parked on a hill with a load the handbrake would be insufficient to hold the truck in place. Instead, the handbrake would be put on with the truck also left in reverse gear. He estimated that he did this two to three times a week. When this happened, Mr Ross would note this in a DVA, asking the mechanics to adjust the brakes, which he estimated would happen once or twice a fortnight. Drivers would also put the truck in reverse in order to slow it down. On cross-examination, Mr Ross conceded that he had not been taught to use the reverse gear as a brake by Onyx, but that it developed through experience. He estimated that this would only work while the truck was travelling around 3 km/h or less.

[185] Warren Dobbe is Nicholas Dobbe’s son. He has worked for NPD for some years and over recent years in the service management position.

[186] Warren Dobbe said most of the servicing of the Sterling trucks was carried out at Onyx’s yard. Initially, NPD mechanics would go to Onyx’s yard every work day, but when other trucks were taken out of the fleet to be serviced by NPD, they visited on Tuesdays, Wednesdays and Thursdays. The hours of attendance were typically 5.00 pm to 8.00 pm. All of the weekly services were carried out at the Onyx yard and around 95 percent of the A services. Warren Dobbe thought that about 60 percent of the B services were carried out there also.

[187] NPD would have to identify when relevant services were due based on when a previous service was completed. This was a predictive exercise. NPD would then look at the current hours that a truck had worked and try to match their own predictive records with the hours worked by the truck. Onyx passed on information about truck hours only very occasionally. Such information was never passed on by TLL.

[188] In any event, the information passed on occasionally by Onyx was not useful because it was historical and thus inaccurate by the time it was received.

[189] Warren Dobbe did not consider it to be NPD’s contractual responsibility to maintain and enforce the servicing schedule for the Sterlings. It was the responsibility of Onyx, said Warren Dobbe, but everyone knew that NPD was having to take that responsibility. TLL knew this. They knew this because NPD had told them. In response to being told that NPD was having to take responsibility for enforcing the servicing schedule, NPD was told by TLL that that was what had to happen.

[190] NPD approached the scheduling of work by recording the engine hours for vehicles and then forward planning on the assumption that the trucks were working around 10 hours per day. However, the hours varied and sometimes trucks would be “double shifted” requiring them to work 17 or 18 hours a day. The lack of predictability of the work hours of a truck meant that a complete service cycle could be skipped. This problem was raised by NPD with Onyx and with TLL. NPD’s impression of TLL’s attitude to this problem was that NPD simply had to put up with these conditions.

[191] By the time of the crash, Warren Dobbe said that the problems with enforcing maintenance schedules had become common practice and that by then there was no point in raising it because nothing was ever going to change from the perspective of NPD. NPD carried on doing the best it could to keep as close to the schedule as it could.

[192] Warren Dobbe confirmed that there were ongoing problems with access to trucks and that from time to time when a particular truck was required for service an NPD mechanic would simply see the truck turn around to do a double shift, making it unavailable. Waiting for trucks was a significant issue for NPD because staff mechanics had to be paid for sometimes six or seven hours with no return. These problems were routinely raised with TLL at group meetings. Mr Dobbe said nothing substantially changed. Mr Dobbe also said that there were times when they would get a truck to their Kumeu workshop and it would be removed back to work by Onyx

because of Onyx’s requirements to fulfil its contractual obligations to pick up

[193] Warren Dobbe also confirmed the unsuitability of the metalled yard at Onyx for carrying out of service checks and maintenance.

[194] Warren Dobbe dealt with the maintenance controllers at TLL to obtain authorisation for work. However, the decision as to whether work could be done would be made by the maintenance managers including a Mr Benadie.

[195] Warren Dobbe had a very similar recollection of the meeting to which his father had referred in evidence where Mr Benadie had reduced his father to tears. At that meeting, Warren Dobbe had been asked to leave the meeting by Mr Benadie because, in Warren Dobbe’s view of things, Mr Benadie did not like the fact that he was being pressed for specific facts to justify the position he was taking.

[196] Warren Dobbe was of the view that TLL placed very strict restrictions on timeframes allowed for jobs on the trucks. Because work was often carried out after hours, retrospective approval would have to be obtained and invoices were not always approved for payment. NPD would often have to accept what TLL decided to pay. Mr Dobbe said that it got to the point where it was no longer worth challenging every decision made by TLL to query an invoice.

[197] Although things got easier when Mr Benadie left, Mr Dobbe said that TLL was still worried about keeping their costs down and were still fairly tight with their costs. Furthermore, time lag in receiving authorisation for work would mean that often a truck would do another 10 hours before NPD would have access to it. This would often result in a service then being performed for which authorisation had not earlier been obtained.

[199] Mr Dobbe said that TLL sometimes knew that required maintenance work had been identified prior to vehicles being taken for the VCAs.

[200] Mr Dobbe said that the VCA checking system was used to manipulate the operator rating system for COF checks. While the trucks did not fail COF checks, the VCAs told a very different story. At times the VCA list of faults would run to two pages. When asked whether, in his opinion, the Sterling trucks should still have been in use by August 2015, he said the answer was “No”.

[201] Mr Dobbe thought that the long list of faults arising from VCAs reflected the fact that the whole “system” was worn out and that the trucks required a complete “ground up” rebuild. Without such, the trucks were always going to have the same recurring faults. Mr Dobbe accepted, however, in relation specifically to CYK705 that some of the individual faults present on the day of the crash could have been fixed.

[203] When asked to describe TLL’s approach to vehicle maintenance on a scale where “1” could be described as highly preventive maintenance orientated and “10” being a description of repairing only when necessary, Mr Dobbe described TLL as being “7” or “8” on such a scale.

[204] Mr Dobbe said that TLL were “okay” with spending money on safety related repairs, but they were not as interested in spending money on safety related improvements. He said the Sterlings were inherently unsuitable for the work of kerbside refuse collections.

[205] Mr Dobbe accepted that NPD had failed to follow up on the faults identified by Mr Khan on 28 July. However, he did point out that the management staff at Onyx should have learned of this fault through their own systems in any event.

[206] Mr Dobbe was unable to explain why the NPD mechanic, Mr Olliver, did not pick up on mechanical defects in CYK705 when he inspected it on 6 August 2015.

[208] In cross-examination, Mr Dobbe was pressed as to whether TLL was merely being cost effective in its approach to jobs. His opinion was that they went well beyond that, trying to stay within a budget and needing to do whatever had to be done to stay within the budget, including trimming labour allowed on a job to the bare minimum. Mr Dobbe firmly and clearly rejected the proposition that there was no budget for repairs and maintenance, saying that with a truck lease, there would always be such a thing.

[209] Pressed in cross-examination as to whether Mr Fletcher’s question asked about the scale from proactive to reactive and where TLL sat on such a scale was nonsensical, Mr Dobbe disagreed. It was suggested to Mr Dobbe that NPD had the responsibility to be proactive. That suggestion was met with this response:27

I disagree with your decision that its nonsensical, a proactive lease company would actually set out and enforce the jobs are done before they’re required to be done, such as air dryers that were removed from the C service by TLL, we weren’t allowed to do them for the first three years that I was there, it was only right that in the last 12 months that they got brought back in so no it’s not a nonsensical question it’s entirely accurate, they were definitely a reactive company in terms of maintenance, they relied on us to look at it rather than saying, “This is what a truck is likely to do, this is the repairs that are likely to be required so it’s going to need to be done between say 20,000 hours and 21,000 hours so we might as well do it at 20 before it blows up and causes more issues.”

[210] Mr Olliver is a mechanic for NPD. He has worked as a mechanic with heavy vehicles for approximately 38 years, the last 7 of which have been with NPD. His role at NPD included undertaking maintenance on the Sterling fleet.

[211] Mr Olliver stated that maintenance was carried out on Onyx’s yard. The mechanics were sometimes able to use the wash bay, but this was often not left in an appropriate condition. The yard did not have appropriate lights, so mechanics used torches or headlamps. Trucks were sometimes not cleaned out, and would leak

[212] It was also often difficult getting access to the trucks. Mr Olliver stated that after they returned from their day run, often trucks which were scheduled for maintenance would instead be taken out on a nightshift to empty commercial bins. Trucks would also sometimes show up late. Servicing was scheduled by NPD based off the truck’s hours and kilometres of use, rather than NPD being advised that service was needed by Onyx.

[213] Mr Olliver raised his concerns about the state of the trucks with Onyx, but this did not change anything. He stated that the working conditions, both in terms of the location and the cleanliness of the trucks, impacted on his ability to work. On cross-examination, he also advised that he had raised his concerns with both Warren and Nicholas Dobbe.

[214] When asked about the lock-out procedure when trucks needed work that rendered them unsafe to work, Mr Olliver confirmed that he had locked out a truck one to two weeks before the crash. In his words, the brakes were ‘absolutely shot’. He advised someone at Onyx that he needed to lock out the truck for repairs to be done, and asked if he could take it back to NPD for repairs. When working on it the next morning, he learned that a call was made to Warren Dobbe where it was indicated that Onyx was not happy with the truck being removed for repairs. The repairs were made and the truck was quickly returned back to Onyx so it could go on its day run.

[215] On 6 August 2015, Mr Olliver carried out a weekly service on CYK705. This was done at Onyx’s yard at night. Mr Olliver recalled that it was raining that night, and that the truck had been left with rubbish and water in it. He stated that an exhaust leak had been noted on the DVR. On inspection, Mr Olliver found that the truck required a replacement pipe. He told his supervisor, Warren Dobbe, that the truck required a new part, and should not be used in the meantime.

[216] In cross-examination, Mr Olliver was also asked about the ABS warning lights. He stated that he did not know anything about the ABS lights being taken out of CYK705.

[217] Mr Carmichael was a workshop manager at Onyx, until he resigned from his position in early 2015, prior to the crash. He had worked at Onyx for around three and a half years, having started initially as a mechanic. He then moved into the management role, which he held for around 15 months. His role as workshop manager at Onyx included managing the maintenance of the vehicle fleet, including the Sterling trucks. He has been a mechanic for approximately 40 years, largely working on heavy vehicles.

[218] Mr Carmichael was asked about the ABS warning lights which were found to not be functioning in the Sterling trucks. He stated that he had no knowledge of the bulbs being removed from any of the Sterling vehicles. He was unaware whether the drivers at Onyx had been instructed to check the lights when the trucks were in use. He said he would have expected that the ABS lights would have been checked during the certificate of fitness checks, and that NPD or Buckland Truck Services would have been responsible for checking them as part of the ongoing servicing between certificate checks.

[219] On cross examination, Mr Carmichael posited that someone may have removed the bulb from the ABS system because the trucks would often get mud on the ABS sensor when they would go to the refuse station, which would show up as a fault in the system.

[220] When asked to describe the state of the Sterling fleet, he described them as poor. He stated that there was little care taken in the state of the vehicle, with the trucks being “knocked around”. He described an incident where video was found of a driver using the handbrake to stop a truck. He stated that was not how the trucks were designed to be used, with the handbrake intended to hold the vehicle rather than stop it. He described the culture at Onyx as poor, with drivers not made to feel

‘ownership’ over the trucks they drove. In his view, this led to the trucks being

[221] Mr Carmichael stated that at times trucks were out on the road when he thought they shouldn’t have been, particularly when there was maintenance work scheduled to take place shortly.

[222] Mr Carmichael described a shift in the operation of the company as the reason why he left Onyx. When vehicles were in need of work he was told by his supervisor, Mr Allan Hughes, that the lease company (being TLL) would not allow them to carry out the work. Onyx had ongoing pressure to keep the Sterling trucks on the road, because it did not have any spare capacity. He described situations where maintenance was noted on a whiteboard as being needed, but this being wiped off as unneeded, so as to keep the truck on the road. Onyx faced being fined if rubbish was left out on the street overnight. He also described trucks being left full of rubbish overnight, which he believed was in breach of the Council’s bylaws. Mr Hughes suggested at one point that some trucks could be obtained from the Australian company which owned Onyx, which Mr Carmichael supported, but that this was soon forgotten about.

[223] Mr Carmichael stated that NPD were responsible for scheduling regular maintenance, which they kept on top of. However, he noted that it was difficult making the trucks available for this maintenance to be carried out. Trucks were regularly getting back to the yard after dark, showing up late, and being kept full of rubbish overnight. The body of the trucks would leak refuse under the truck, where NPD mechanics were required to carry out maintenance. He suggested that NPD mechanics were sometimes left to wait for up to two hours for the truck to show up. The mechanics usually carried out their work on the yard with poor lighting, rather than in a workshop.

[224] Mr Hughes is currently operations manager for Onyx. At the time of the crash he was operations manager for Onyx’s waste recycling division, a position he had held since 2006. This role entailed coordinating Onyx’s fleet, including organising maintenance and repair work.

[225] Mr Hughes gave evidence of the contractual relationship between Onyx and the then North Shore City Council.28 The contract commenced on 1 July 2005, and ran for an initial 10-year term. Onyx also entered into a contract with Waitakere City Council at the same time. The contract with North Shore City Council was later extended for a further two to three years.

[226] When Mr Hughes joined Onyx, it was leasing the fleet of Sterling vehicles from TLL. He stated that this was on a fully maintained basis, which meant that the contract dealt with maintenance of the cab and chassis of the trucks. The contract provided that a designated service provider would provide this maintenance. Trucks were leased for a specified term, after which the lease would continue on a month-to- month basis.

2005. At the time of the crash, Mr Hughes stated that the Sterling trucks were all coming to the end of their leases. New vehicles had been ordered.

[228] Under the leases, TLL was noted as being responsible for maintenance, COF and registration, and largely bore the costs of these. However, Mr Hughes stated that during the term of the lease this changed to a 50/50 split on anything over and above the scheduled maintenance of the truck. This change was because of the unexpectedly high costs of running the trucks. Onyx and TLL also agreed to implement weekly safety checks on the trucks, which was not provided for in the initial agreements. The costs of these were shared on a 50/50 basis.

[229] Maintenance was provided by NPD. Mr Hughes provided similar evidence to others, stating that much of the maintenance was carried out at Onyx’s yard. This was convenient for Onyx, given the different hours trucks were running. He stated that NPD were given the option to use the wash bay or take the trucks back to their own yard for work, and was unaware why much of the maintenance was carried out on the gravelled car-park at Onyx’s yard. He stated that the car-park would be suitable for this use in summer, but that it had inadequate lighting and not a stable

_{enough surface to do some servicing work. He accepted that there may
have been}

times where NPD had issues getting access to vehicles, due to the trucks returning late from a shift or being used for night-shift. He put much of this down to communication failures between NPD and Onyx.

[230] When asked, Mr Hughes stated that he was unaware of any services being missed completely, and that he had never overridden a truck being locked out by NPD. He agreed that regular meetings with Onyx, NPD and TLL occurred, but could not recall whether NPD’s concerns about work facilities and access to vehicles had been discussed.

[231] Mr Hughes confirmed two earlier incidents that occurred with trucks being used by Onyx. In one case, a Hino truck was involved in a fatal crash that was in part due to poorly maintained brakes. That lead to Onyx setting up the DVR system, and entering into a health and safety plan with the North Shore City Council. Another incident occurred where a Sterling truck rolled through a stop sign. Police investigated and found the truck was unable to stop within the legally-required distance.

[232] Mr Hughes denied that Onyx had been aware of ongoing braking issues with CYK705 prior to the crash, stating that the truck would have been locked out had they been aware.

[233] In terms of oversight of what maintenance and repairs was being carried out, Mr Hughes stated that Onyx was informed of the type of service that was carried out on the trucks via monthly invoices but was not given much detail of what was done during this maintenance. He also stated that Onyx did not have any health and safety meetings with TLL, nor did Onyx send TLL information about the hours of operation, services or repairs performed (other than major repairs) or problems that arose with the vehicles.

[234] In cross-examination, Mr Hughes stated that his personal view after reading Mr Wolfe’s report was that NPD had failed. He went on to say that if Onyx had concerns about NPD’s work, there was nothing stopping them from contacting TLL

about these issue. Onyx had previously done this regarding work done by a separate company.

[235] Mr Langson started working for Onyx in about 2014 as a diesel mechanic, then progressed to Fleet Maintenance Manager. He has wide experience as a diesel mechanic.

[236] Mr Langson said that Onyx provided their yard for NPD to perform weekly and A services. He said that generally B and C services would be carried out at NPD’s workshops. He did accept, however, that some B services were carried out at Onyx’s yard, but that a bay in the workshop or the wash bay would be made available. He did not seem to dispute the evidence of Messrs Khan and Olliver, that the services were carried out on gravel, but that that was about 50 percent of the time. He accepted that lighting was limited. He said the mechanics would use inspection lights. He further described those as a personal handheld torch.

[237] Onyx did not have a system in place for checking on the quality of maintenance and repairs carried out by NPD. Nor did he keep a schedule to keep track of servicing of the Sterling fleet. He said that he did not have the information of what servicing NPD was doing and did not see the need to keep a schedule. He claimed not to have known what repairs were being done during services.

[238] Mr Langson would be contacted by NPD with a request to make any particular truck available for service. He also confirmed the existence of DVRs.

[239] Mr Langson said he would keep a whiteboard to keep track of when each truck was due for a COF and that about two weeks prior to that he would take the vehicles for a VCA. He described the relationship between Onyx and NPD, with regard to the scheduling of maintenance, as informal and that there was not a weekly review of maintenance set up with NPD.

[240] Mr Langson said he had no knowledge of any Sterling truck continuing to operate after major defects had been identified in a VCA.

[241] It was Mr Langson who first fixed the faulty brake air hose on 28 July 2015.

[243] Asked to comment on the state of the bodies of the Sterling trucks before the crash, Mr Langson thought that they were “past their use by date those trucks”. His view was shared by others it seems. Mr Langson also said that because of their age, there was constant and ongoing repairs and maintenance that had to be done on the bodies and hydraulic systems and he thought that that would be the same for NPD doing continuous maintenance on them because of their age. He said he raised these concerns with TLL and TLL offered to sell the trucks to Onyx. Onyx was not interested.

[244] Mr Langson had no recollection of overriding any decision to lockout a truck for safety issues.

[245] At the relevant time, Mr Knight was a Health and Safety inspector and Commercial Vehicle Enforcement Officer at the Commercial Vehicle Investigations Unit with the New Zealand Police.

[246] Aside from carrying out various other investigatory tasks, he interviewed Mr Dean Purves who, as General Manager of Commercial Vehicles with TLL, represented TLL. The interview was conducted in the presence of TLL’s lawyer. The type of questions to be asked had been advised in advance of the interview. The interview was voluntary with an appropriate caution given.

[247] Mr Purves explained that TLL is a large organisation and at the relevant time had 107 employees in New Zealand. Many more work in Australia. Vehicle leasing and fleet management is TLL’s main business. TLL used what it referred to as a Master Lease Agreement29 in conjunction with which a specific lease agreement would be entered into relating to each individual vehicle such as CYK705.30

Mr Purves described the Master Lease Agreement as going “over the top” of any individual transactions relating to specific vehicles. He described these arrangements as standard industry processes.

[248] He described TLL’s relationship with Onyx as “business as usual” with trucks operated by Onyx and TLL maintaining them. He did, however, describe the relationship between TLL and Onyx as strained at times. He further described how, in 2009, an agreement was reached with Onyx to split the maintenance costs on a “50/50” basis. He said that there were high maintenance costs associated with operating the Sterling brand trucks because of the type of work they did. TLL became aware of a “significantly large amount of maintenance required to keep the

Sterling vehicles roadworthy”.31 Mr Purves explained that the lease of the Sterling

fleet between TLL and Onyx was due to expire in July 2015 because that was when Onyx’s contract with the City Council for rubbish collection expired. He did, however, say that the agreement was that the lease would carry on beyond that date until replacement vehicles arrived. Mr Purves said that it remained TLL’s obligation to maintain the vehicles until the end of any ongoing contract.

[249] Mr Purves indicated that TLL’s expectation was that Onyx would make vehicles available to the recommended service provider, in this case NPD, when the vehicles were due for service. Mr Purves was unsure whether anyone from NPD had ever raised concerns with TLL regarding unavailability of the vehicles for servicing. As far as Mr Purves was concerned, he had not, up to the time of the crash, received any complaints regarding the availability of the vehicles for servicing. Mr Purves

_{did seem to be aware in the interview, however, that there was the
possibility of}

breakdowns, causing major issues for Onyx and diminishing Onyx’s fleet capacity and ability to service their contract with Council and thus creating pressure to get trucks back up and running. He seemed to be aware that there was an issue that had arisen with regard to vehicles not always being at Onyx’s yard available for inspection because they had not arrived back from their runs. However, Mr Purves said that he became aware of this issue after the crash and that it had not been raised with him prior to that. It seemed, in the interview, that Mr Purves was aware, from TLL’s records, that Onyx was not presenting the vehicles for service at the correct times.

[250] Mr Purves said that he was only aware after the crash of the inadequacies of facilities for vehicle inspections and servicing. Mr Purves accepted that there were times when invoices from NPD for work done would be queried and payment negotiated. However, he reiterated that TLL was aware of its obligations to pay for maintenance under the Master Lease Agreement and Specific Lease Agreement. It was Mr Purves’ view that Onyx had not been complying with its contractual obligations to make vehicles available.

[251] Mr Purves’ understanding was that up to the date of the crash the relationship

[252] Mr Purves appeared to accept that Onyx’s work requirements and contractual obligations obviously interfered with some of the vehicles being made available during business hours, but that nevertheless the arrangement for accessing vehicles for inspection and maintenance was between NPD and Onyx.32

[253] Mr Purves also appears to have become aware of the unsatisfactory conditions for servicing the vehicles at Onyx’s yard “very late in the contract”. He said that, however, because he became aware of these things very late in the contract, TLL left them as they were and that, in any event, there was never any mention of

[254] Mr Purves thought that typically a Sterling truck would work 50 hours in a work week.

[255] Mr Purves accepted that concerns arise if a truck overruns any service period which could lead to complications and cause damage. Mr Purves’ position appeared to be that if a truck missed two or three services that would be a concern and that would be raised with the service provider, but if a truck missed “the odd one here and there” then as far as Mr Purves was concerned, that would not be a concern.

[256] Mr Purves said that TLL was not aware that the Sterling vehicles did not have a proper operating ABS brake warning system.

[257] Mr Purves said that as far as key performance indicators (“KPIs”) in the Master Lease Agreement were concerned, TLL did not have any arrangement for formal monitoring of the KPIs. TLL had no audit process in place regarding checks and maintenance.33 It was simply TLL’s expectation that NPD would comply with contractual requirements.

[258] It was only after the crash that Mr Purves became aware of the existence of the DVR books. Nor did TLL have in place any system to monitor the DVRs.

[259] Asked what procedures TLL had in place to monitor the regularity of servicing of the Sterlings, Mr Purves said “...we keep obviously records of the servicing.” And then:

...we supplied the data back to Onyx each month to, so they were obviously aware of hours and times of when vehicles were serviced. Again it’s the customers obligation to ensure the vehicles were presented for servicing at the due times.34

[260] Mr Purves said that, with regard to repairs, there would be a discussion between NPD and TLL for every job regarding the estimated cost of the job. If the job was what Mr Purves described as a major job then a TLL staff member might go

[261] Mr Purves was asked who would decide when a service was due. He spoke in general terms that typically a service provider (in this case NPD) would keep a record including a service sticker and that typically service providers would keep records of servicing that they had done. That would enable the service provider to keep a track in their system regarding what was due for a truck. Mr Purves said that the service provider would then make a call to TLL and suggest to TLL what was due. Mr Purves said that TLL would “...obviously check through our service history

service they expected for the vehicle when they sent it in, Mr Purves answered that that would not typically happen. Once Onyx brought a vehicle in, Mr Purves described the process thus:

...but then once it, once it arrived then om um, NPD would make a recommendation to us and say this vehicle’s due for a B service, and we would then check that say “Yes” it is, “No” it is not...36

[262] Mr Purves seemed to suggest that TLL would be able to typically pick up when things were due because of the frequency of weekly checks.

[263] When asked whether TLL had any concerns regarding the Sterling fleet and its mechanical condition, Mr Purves said that the costs were high and that they were high maintenance vehicles because of the work they did and that there were certain faults, one obviously being the brakes because of the nature of the work done.

[264] Mr Purves was asked whether TLL could have provided “...an improved service to Onyx via NPD”. Mr Purves thought that TLL’s obligations with its contract with Onyx were met. When asked the same questions with regard to NPD, Mr Purves said that the Master Service Agreement, used with the majority of TLL’s suppliers, functioned sufficiently.

[265] When asked about health and safety practices implemented by TLL with either Onyx or NPD, Mr Purves said TLL relies on legislation and a requirement that

_{NPD conforms to legislation and that it was not TLL’s job to
enforce health and}

safety requirements in other businesses. His position was that NPD was an independent contractor.

[266] Asked whether there had been any changes made by TLL to the service provider contracts “since this last fatal crash” Mr Purves said no changes had been made, although TLL was looking to “align the contracts pan Tasman” which he said was not the easiest thing to do when there are different rules and regulations in both countries and the way business is conducted is not quite the same.

[267] Asked why the fleet of Sterlings had a large number of faults when inspected after the crash, Mr Purves suggested that the responsibility was on Onyx to present the vehicles for servicing.

[268] Mr Knight made reference to a spreadsheet37 which consisted of a summary of all services carried out on CYK705 from the beginning of the lease until the crash. That is a document created by TLL and, at least on a monthly basis, provided to Onyx. It is thus a document with which TLL must have been familiar.

[269] Mr Knight produced38 a spreadsheet he had created and which is a summary analysis of the services actually carried out on CYK705. It established:

Broadly, the above analysis showed a shortfall of approximately 25 percent of services required under the PMS.

[270] As with his interview, Mr Purves gave evidence representing the defendant company. He said TLL had 110 staff as at August 2015 and at that time leased almost 17,000 vehicles. Of that number, 13,644 were either on what he described as “fully maintained contracts or they were contracts that we managed the maintenance on”. TLL’s management of maintenance involved the use of 2,400 service providers.

[271] Mr Purves said that TLL only became aware of problems with NPD not being given access to proper work facilities after the crash. Mr Purves said TLL could see that maintenance was “being carried out on a regular basis”.

[272] Cross-examined, to clarify the number on fully maintained contracts, Mr Purves said that the number of fully maintained trucks was 120 and of those, six consisted of the Sterling fleet. That included CYK705.

[273] Mr Purves accepted that the Sterlings, including CYK705, were within months of retirement. He accepted that the COF on CYK705 was due to expire on

17 September 2015. TLL knew the purpose for which the Sterlings were leased, namely rubbish collection. He accepted that the terms of the lease made TLL responsible for maintenance. However, Mr Purves repeatedly referred to TLL’s responsibility for maintenance as a “...responsibility to pay for the maintenance...”39

[274] Accepting that the contractual documentation between TLL and Onyx did not specifically deal with health and safety issues, Mr Purves also accepted that TLL did not check any clients as far as health and safety issues were concerned, relying instead on legislation to cover lessees’ businesses.

[275] Mr Purves appeared to accept that the Master Service Level Agreement between TLL and NPD was quite prescriptive in setting out the process to be

followed in NPD seeking authorisation from TLL regarding servicing or repairs. Mr Purves also accepted that TLL had in place, with NPD, a PMS which TLL had designed based on manufacturer’s recommendations and TLL’s own experience. Mr Purves appeared to be unable to dispute, on the basis of any personal knowledge, the evidence of Nicholas Dobbe that NPD never received any manufacturer’s specifications from TLL.

[276] Mr Purves accepted that TLL monitored costs and put budgets in place regarding maintenance and servicing. He did not accept that the company was “penny-pinching” in this regard. Mr Purves had not personally had any feedback regarding NPD’s managers giving up on challenging decisions by TLL to query their invoices. Mr Purves said that he was unaware of any difficulties.

[277] Mr Purves accepted that the Sterlings were never a suitable vehicle for the work required of them and were a very high maintenance vehicle from the first year of service. That led to a renegotiation of TLL’s contract with Onyx in 2009, resulting in a splitting of maintenance costs equally between TLL and Onyx. He accepted that the Sterlings were proving a bad business decision. He said that the

50/50 cost split with Onyx reduced some of the losses being incurred by TLL on the

[278] Asked why TLL did not know the exact condition that the fleet of Sterlings was in in 2015, Mr Purves responded by saying that the vehicles were being presented to NPD regularly for service. Furthermore, they were being presented for regular COF inspections, they had not been targeted by the Commercial Vehicles Investigation Unit, the flow of invoices was regular, the work was continuous and there was no reason that they should have been in that state. As far as Mr Purves was concerned, the paper trail indicated that there was not a problem. Furthermore, no complaints had been received. However, he also accepted that TLL’s relationship with Onyx was strained at times because of the huge costs of running the fleet and that the costs of the Sterlings was a constant headache. Mr Purves seemed to indicate that TLL was aware that Onyx did not have enough Sterlings to service their

contract with the Council. That seemed to be knowledge that TLL had for “quite a long time”.40

[279] When it was suggested to him that there were “red flags” requiring extra vigilance on the part of TLL regarding maintenance, Mr Purves made reference to the weekly checks. Mr Purves rejected the proposition that a decision had been made not to spend significant money on the Sterlings towards the end of the lease.

[280] Mr Purves asserted that Onyx is involved in the waste industry and not TLL. TLL, Mr Purves said, was merely a vehicle leasing provider.

[281] It surprised Mr Purves that guidelines prepared in 2014 by Waste Management Institute New Zealand (“WasteMINZ”), the largest representative body of the waste and resource recovery sector in New Zealand, formed in 1989, made specific reference to the duties placed on the principal of a contract to take all practicable steps to ensure the safety of contractors, subcontractors and their employees and that principals could not contract out of their legal responsibilities through contract disclaimers. He was unaware of the guidelines referring to the leasers of plant such as TLL having a duty to ensure that the plant is maintained to ensure its safety for intended use. Mr Purves did not think that the guidelines had any relevance to TLL.

[282] Mr Purves’ attention was drawn to the details of the police report regarding the crash of a Sterling truck TLL had leased to Onyx well prior to the crash that led to this trial. That truck rolled in 2006 after failing to stop at a “Give Way” sign because its brakes had failed. The brakes had not been working properly for some time. Up to a point, Mr Purves appeared to accept that the issues appeared to be similar between that truck and CYK705. He did not appear to be prepared to accept that that earlier crash had created institutional knowledge on TLL’s part. Most of the people who would have been in the business in 2006, when the earlier crash occurred, had left the company by 2015. So although he was unable to identify any

_{specific changes in procedure following the 2006 crash he did say that
TLL had}

introduced such things as weekly checks for the Sterling fleet to, as he put it,

[283] Mr Purves was aware of a fatal crash in 2007 involving a Hino rubbish truck leased by TLL to Onyx. It seems that Mr Purves was not aware that it was a TLL truck involved in that fatal crash. Again Mr Purves explained that staff had changed since that crash. When it was suggested to him that nothing had changed within TLL as a result of those crashes, he said that TLL expected its service providers to provide an appropriate level of repair under the Master Service Level Agreement. He thought it highly unusual that by the time of the 2015 crash, a second service provider had let TLL down.

[284] Mr Purves continued to repeat under cross-examination when pressed as to the nature of the contractual obligation on TLL to maintain the trucks that it created a responsibility to pay for the maintenance.

[285] When asked whether there was any excuse for CYK705 being in the condition identified by Mr Wolf, Mr Purves blamed the condition on failures by NPD.

[286] Responding to the proposition that it is well known within the industry that rubbish trucks are tough on brakes and there needs to be close attention to the maintenance of brakes, Mr Purves responded by reference to the service schedule requiring weekly checks.

[287] Again, by reference to the largely uncontested findings of John Wolf, this question and answer exchange took place:

Q. Now, given that it’s the TLL has the responsibility for maintenance under the Onyx contract, given that undertook by the contract to use its best endeavours to ensure that NPD achieved a good standard of workmanship. Given it put in place the maintenance system and the PMS schedule for the Sterlings that NPD followed, and given that the contract with Onyx allowed TLL to inspect leased vehicles at any time to see that they were up to standard. How did TLL allow these safety defects to occur?

A. Well, look, we put in, as you said, we put in place preventative maintenance schedules, contracts with our supplier, we had a flow of

invoices, regular conversations with the suppliers, we never had any complaints from Onyx regarding the maintenance situation, so we had put in a very robust plan to prevent this happening. Now, we had been let down obviously and completely by one supplier, we’ve got this process in place for the thousands of vehicles that I mentioned before and the system works very, very well.

[288] Mr Purves firmly rejected the suggestion that NPD’s failures resulted from

[289] Mr Purves was unable to comment on the somewhat self-evident proposition that insofar as CYK705 was concerned, it had ABS system faults, but the driver was unable to adequately respond because of the removal of the warning light. Mr Purves did comment that deliberate removal of an ABS warning light was not something over which TLL could possibly have any control.

[290] Mr Purves accepted that the leasing arrangements created an ongoing agreement and that maintenance responsibilities were ongoing, but commented further that once TLL handed over the vehicle to the client, TLL would not see the vehicle again until the vehicle came back to TLL.

[291] Mr Purves was asked to comment on the analysis of the frequency of PMS services carried out. It was suggested to him that approximately 29 percent of weekly services were missed in 2013, approximately 25 percent in 2014 and approximately 24 percent in 2015. Mr Purves appeared to accept that broad analysis.

[292] When asked to comment on Mr Wolf’s evidence that the maintenance on CYK705 appeared to have been neglected for weeks if not months, Mr Purves suggested that Onyx may have chosen not to make the vehicles available for weekly services and that that was their decision with TLL having nothing to do with that. He said that TLL had “permissions in place for the services to be carried out”. Mr Purves accepted that the maintenance provider had missed maintenance opportunities over a much longer period than required.

[293] Further, regarding vehicle maintenance, Mr Purves repeated that there was no budget for maintenance. Pressed further on that he conceded that although there was no budget there was “an allowance in the lease” over which the cost was split.

[294] Mr Purves was asked to comment on why TLL did not pick up on the deviation from the PMS schedule by doing “the sort of simple analysis that Mr Knight took us through based on the spreadsheet data that you had available?” Mr Purves said that it is rare that a lessee would take a vehicle in for service on the exact date at all times. He fell back on blaming NPD for not picking up on this.

[295] When asked whether these failures should have been picked up through the lack of spending on the monthly allocation for maintenance he said that TLL looked at historic costs and had apportioned for age but that because TLL runs a large fleet of vehicles the figures go into a big “pool”.

[296] Mr Purves suggested that because of the volume of work TLL had, the failings such as missed services were difficult to detect.

[297] Mr Purves further suggested that it was contractually Onyx’s responsibility to keep a schedule of when services were due.

[298] It was suggested to Mr Purves that NPD had raised with TLL its frustrations over a lack of proper access to the vehicles for maintenance and repairs. Mr Purves was unaware of NPD raising that issue with TLL during his time with the company.

[299] Asked to comment on a system that allowed a busy operator like Onyx to run a servicing schedule according to what was convenient to them and whether such an approach was appropriately safety focused, Mr Purves said that Onyx had obligations to meet and that those obligations included making sure their vehicles were safe for drivers and the public and that they had legislative requirements to meet also. He did however accept that Onyx needed to look at convenience in conjunction with a need to look at safety aspects as well.

[300] When confronted with the obvious temptation on Onyx to keep a vehicle on the road in an unsafe condition, Mr Purves observed that a vehicle broken down is not generating revenue and that there would be a hope that legislation and health and safety practices would prevent Onyx from succumbing to such temptation.

Mr Purves commented however that TLL had no other customers with whom there was a 50/50 cost sharing arrangement regarding maintenance and repairs.

[301] Mr Purves did not agree with the proposition that the maintenance budget for the Sterlings was not sufficient and that the focus was on reactive repair rather than proactive maintenance. He also rejected the proposition that the VCA check was being used as a de facto maintenance check.

[302] Mr Purves claimed that TLL was not aware of the poor VCA results leading up to the date of the crash. It was initially unclear whether this ignorance was personal or institutional.

[303] Mr Purves commented that rather than the de facto 150 hours used, the A servicing should have been done “as per the form”. In other words at 100 hour intervals.

[304] Crucially, Mr Purves accepted that “no doubt” TLL would have seen the VCAs containing long lists of defects in 2014 and 2015. At the same time, he again accepted that the trucks were high maintenance trucks.

[305] It was then suggested that receipt of the VCAs containing long lists of necessary repairs would have made it obvious to TLL that there was a pattern reflecting poor maintenance in the preceding six months. Mr Purves deflected the question by saying he had not seen the VCAs themselves. He was then taken to the specific evidential foundation for asking the question to which he responded simply that the vehicles are high maintenance. When it was suggested to him then that he was not answering the question, he said that TLL did not notice “any differentiating

trends from what we had been experiencing”.41 He repeated that these were high

maintenance vehicles which were always being repaired. Pressed even further, Mr Purves was asked to accept that TLL should have been able to work out that, because of the long list of repairs arising from the VCAs, there were vehicles on the road that were unsafe. He simply said that that depended on what had been brought to TLL’s

[306] Asked to confirm that TLL did not audit or monitor in any way the maintenance services that NPD were providing, he accepted that TLL did not go out and physically audit the services, but that from time to time staff had been to NPD’s premises for various reasons. Asked again to confirm that there were no “red flags” and that TLL trusted Onyx and NPD to get the maintenance right, Mr Purves said that obviously Onyx had had some issues with accidents in the past, so TLL believed that they had changed their health and safety structures and processes to make sure that it did not happen again. It followed that TLL were reliant on their processes.

[307] While Mr Purves accepted that with the qualified staff in TLL, it would have been capable of auditing the quality of the work carried out by NPD. He indicated that with the number of vehicles leased and suppliers used, the roles were more office-based and that TLL did not have any one out in the field doing that. When it was pointed out to him that he had earlier said that TLL had 120 fully maintained trucks, he said that the number was about 200 on fully maintained or managed maintenance contracts.

[308] As a question, it was suggested to Mr Purves that TLL staff could have spoken to NPD and Onyx mechanics and drivers to learn their feelings about the Sterling trucks. He said that they could have, but that that was not typical practice. He went on to again say that there were no red flags indicating that TLL needed to do that or to audit services undertaken. He again suggested that with 2,500 suppliers, TLL’s system works robustly.

2012. He is also a qualified diesel mechanic, and has 43 years’ experience in the

[310] His role at TLL involved overseeing maintenance of TLL’s heavy vehicle fleet. This included authorising work that was required on the fleet, which was logged in a database run by TLL. Mr Damon stated that his supervisor,

Daniel Krijnauw, would extract information from this database onto a spreadsheet, which would be provided to Onyx on a monthly basis along with invoices. A spreadsheet would be produced for each truck that was leased to Onyx. TLL would pay the invoices for work done on the trucks in full, and would then bill Onyx for the portion that it was responsible for in their contracts. Mr Damon was in constant contact with NPD, largely via email, to approve scheduled services.

[311] Mr Damon stated that he knew that NPD were carrying out weekly service checks at Onyx’s yard, which he believed was due to concerns around the trucks returning from their day shifts late. He was unaware of where the checks were being carried out, but assumed it was inside Onyx’s workshops. As far as he knew, the trucks were being regularly serviced, as shown by the invoices TLL would receive from NPD. He stated that the service timeframes were generally being met.

[312] In cross-examination, Mr Damon accepted that someone else at TLL may have been told by NPD that they had been having issues accessing vehicles, but stated that he believed he would have heard if this had happened. He stated that under the arrangement in place, NPD would communicate directly with Onyx to have the trucks available for maintenance. TLL was not involved in this.

[313] Mr Damon was also asked about a substantial number of repairs that were detailed on TLL’s schedule, which, it was suggested, indicated that the trucks were not being maintained properly. Mr Damon replied that he would have expected that the service provider would be following the PMS.

[314] Mr Benadie gave evidence for TLL. He is a trained mechanic having trained in South Africa. He worked with TLL from 2007 until 2014. He is experienced in truck repairs. He was the Heavy Commercial Operations Manager with responsibility for overseeing the maintenance of, amongst other things, the Sterling fleet.

[315] Mr Benadie described the Sterling fleet as very uneconomical, requiring detailed attention. He said that there were issues with the brakes in the fleet and that the costs of maintaining the fleet were “phenomenal”. He said changes were implemented regarding maintenance of the fleet in around 2008.

[316] Mr Benadie claimed that TLL did not hesitate regarding the payment of costs for maintenance.

[317] Mr Benadie described using John Gibbons to audit the fleet in around 2008 and, after receiving recommendations from him, changes were implemented. That included taking on NPD as the maintenance provider.

[318] Mr Benadie described a lack of proper “preventative maintenance” carried out by the former provider Bucklands. He gave as an example costly engine repairs which had to be carried out because Bucklands had not been putting a proper anti- freeze into the cooling system, resulting in internal corrosion of the engines. As a result of an engine failure, matters seemed to have come to a head. Mr Benadie described TLL thereafter monitoring the anti-freeze through what he described as emails and paper trails.

[319] Mr Benadie said that TLL made it known to NPD that health and safety was paramount.

[320] He also indicated that any discussions that he had with Nicholas Dobbe were usually in the presence of representatives from Onyx as well.

[321] Mr Benadie said that weekly inspections and A services were to be done in Onyx’s yard. His understanding was that the B and B+ services were to be done at NPD’s premises.

[322] Mr Benadie described the cleaning of trucks as Onyx’s responsibility. He claimed to recall inspecting Onyx’s wash bay on a regular basis. He described as a standard practice that the technician, which I took to be a reference to NPD mechanics, would wash the vehicles.

[324] Mr Benadie seemed to suggest that, if it had come to his attention that torches were being used for inspections, Onyx would have dealt with that.

[325] Mr Benadie’s recollection of the meeting with Nicholas Dobbe where Mr Dobbe was reduced to tears was different to the recollection of Nicholas and Warren Dobbe. Mr Benadie described it as a normal discussion and that he was surprised by Mr Dobbe being reduced to tears. In his evidence-in-chief, Mr Benadie made no mention of Warren Dobbe attending that meeting, but mentioned it when pressed in cross-examination.

[326] Mr Benadie denied asking Warren Dobbe to leave the meeting, but did concede that Mr Dobbe did in fact attend the meeting but left. Mr Benadie was not too sure how that came about.

[327] It was Mr Benadie’s evidence that there was no budget whatsoever applied to

[328] Mr Benadie acknowledged that the Sterling fleet incurred what he described as much more than normal expenses.

[329] Mr Benadie said that TLL had to watch its costs at all times and then made a

[330] Although Mr Benadie had observed the gravel in the Onyx yard, he said this was never raised.

[331] Although seemingly unable to comment on the long list of faults revealed in the VCAs, Mr Benadie nevertheless was able to offer the comment that as time went by the Sterling fleet improved “drastically”.

[332] As to processes, it was Mr Benadie’s evidence that Onyx would not receive

[333] I clearly took Mr Benadie’s evidence to be that TLL maintenance controllers received the VCAs in order to justify and authorise the repair work then carried out. Mr Benadie seemed to excuse these lists of defects on the basis that weekly checks would have picked these up.

[334] It was Mr Benadie’s recollection that fortnightly meetings took place involving both Onyx and NPD. He then endeavoured to explain NPD’s evidence that the meetings were three to six monthly on the basis that there were such meetings involving only NPD. Onyx had concerns at these meetings which they identified.

[335] When queried in cross-examination about his earlier evidence that there was no budget whatsoever and asked how his evidence compared with earlier evidence in the trial that there was in fact a monthly allocation for maintenance, Mr Benadie fell back on what I consider to be merely a semantic observation that “...it wasn’t stipulated as a budget it was a rental fee...”

[337] He, having reviewed Mr Wolf’s report, concurred that the brake defects identified in CYK705 would have had a major negative impact on the vehicle performance, including braking, and would have resulted in the vehicle being “pink stickered” if inspected.

[338] Mr Gibbons said that the evidence he would give would be within his area of expertise and would address the issues that he had identified which appeared to be commenting on Mr Wolf’s report. He then went on to comment about the competency of truck drivers and his surprise that the defects were not picked up by the driver during his pre-driving inspection. That, in my view, begged the question how a driver would pick up brake faults prior to driving the truck.

[339] Mr Gibbons expressed surprise that the weekly checks had not picked up the brake faults and that they had not been reported by previous drivers as brake impairments in the DVRs. In fact, a DVR dated 28 July noted a brake failure and that the truck was not holding on hills and requested adjustment of the brakes. Tyre issues had also been reported between that date and the date of the crash and repeated alerts were noted in the DVRs regarding leaking exhaust.

[340] Mr Gibbons then went on to comment in detail on the events immediately surrounding the crash and the competency and actions of the driver. He commented on what he considered to be the decision of the driver to go down one of the steepest roads on the North Shore “knowing he had defective brakes and poor tyres”. His evidential foundation for making that assertion is questionable.

[341] The flavour of Mr Gibbons’ analysis of the crash seemed to me to be that he largely blamed the driver for the crash of the truck. He blamed the driver for not applying the brakes in the proper way. Included in his criticism of the driver was the fact that the driver was operating the vehicle with exhaust fumes in the cab, had earmuffs on and was ignoring warning buzzers. There is no basis to suggest that exhaust fumes or earmuffs were in any way causative of the crash. There is no basis to suggest that the driver, on Kauri Road, ignored the buzzer. Quite the contrary. He was also critical of the driver for continuing to descend the hill with the warning buzzer sounding. There is no evidential foundation for that. I am satisfied that the warning buzzer came on at the point in time when the brakes failed. The driver had no option at that point but to descend the hill.

[342] While saying that the park brake is only a holding brake and not an emergency brake, Mr Gibbons opined that the driver should not have applied the footbrake, but rather should have reapplied the park brake.

[343] When it was suggested to Mr Gibbons in cross-examination that during the driver’s morning walk-around he would not be expected to get under the vehicle, Mr Gibbons suggested that the disengaged automatic slack adjustor would have been obvious to see because it would have been hanging down. That assertion is factually incorrect.

[344] Mr Gibbons was asked in cross-examination if he was carrying out a safety audit in relation to repairs to which he answered no.

[345] Mr Gibbons was confronted with the proposition that, by the time of the crash, the Sterling fleet was in a poor state of repair and was asked whether that indicated proactive vehicle maintenance. Mr Gibbons, in my view, indulged in an exercise in evasion of the question.

[346] Mr Gibbons struggled from time to time to directly answer questions and was at times evasive.

[347] It was my impression that, to some extent, Mr Gibbons became an advocate in his evidence. He advocated that it was the responsibility of Onyx to ensure that maintenance was carried out. He also was of the view that TLL knew that Onyx was not presenting the vehicles for maintenance. He suggested that it was always a problem getting the trucks for servicing and that “...that was one of the biggest battles that we had”.

[348] Although he told the police he had brought brake problems to NPD’s attention on the morning of the crash, he corrected that. I accept his explanation. His veracity was not, in my view, damaged.

[349] I accept the driver’s evidence as truthful. Some exact details were not necessarily highly reliable, but I accept his evidence about his repeated, but ultimately futile, efforts to have faults with CYK705 rectified.

[350] The driver continued to drive the truck in circumstances where he had little choice in reality.

[352] While not a trial-by-expert, there is no reason, in this case, not to accept his findings.

[353] Mr Wolf’s qualifications and experience are unquestioned. His findings and opinions are properly supported by proven facts and are substantially helpful.

[355] I accept Mr Naidu’s evidence. While he may not have a reliable memory of CYK705 on the morning of the crash, his evidence regarding lockout procedures and that lockouts were, from time to time, overruled prior to repairs taking place was truthful and reliable.

[356] Mr Dobbe impressed me as a careful witness. He did display, in my view, an understandable self-preservation at times in giving his evidence. However, I nevertheless found him to be a truthful if somewhat reluctant witness.

[357] I accept Mr Dobbe’s and his son’s, Warren’s, version of his dealings with

[358] Nicholas Dobbe struck me as an honest businessman anxious to do the right thing with a sense of duty. That sense of duty was to finish out the term of the contract under very difficult and trying circumstances where work quality became compromised. That is not to suggest that he was right to balance matters in that way.

[359] I take the view that Nicholas Dobbe’s evidence, regarding the length of time the serious CYK705 faults had existed prior to the crash, was a somewhat self-protective rationalisation, but was not actively dishonest. I take the view that both Nicholas and Warren Dobbe are genuinely embarrassed and remorseful for NPD’s part in the events leading up to the crash.

[361] I found Warren Dobbe to be a straightforward witness who answered questions directly. He had a good recall as far as memory can be judged in a courtroom.

[362] I found Mr Dobbe to be truthful. A good deal of Warren Dobbe’s assertions were corroborated by others and he was a witness prepared to frankly accept NPD’s failings. By way of example, he accepted that NPD failed to properly follow up the faults in CYK705 identified on 28 July 2015.

[363] In contrast to Mr Purves, Warren Dobbe did not give me the impression that

[365] I detected no real problems with Mr Olliver’s evidence. It was corroborative and corroborated. He spoke of the very poor work conditions and the use of Onyx’s yard and the fact that there was poor access to the trucks and pressure not to remove trucks from the fleet for servicing.

[366] Mr Carmichael’s evidence was corroborative and corroborated. I accept it.

[368] Much of his evidence was corroborative and corroborated in a number of respects, such as the cost pressures on running the Sterling fleet, poor working conditions and the unavailability of the trucks for servicing.

[369] However, there was, given his ongoing employment with Onyx, a flavour of self-protection in the way he rationalised some of the problems as a product of what he referred to as communication failures.

[370] Mr Hughes claimed to be unaware of lockouts being overridden. Even if that was true, which I doubt, his stance hardly undermines the actual observations recalled by others that the overriding of lockouts did happen.

[371] Mr Hughes also claimed to be unaware of services being missed completely. Again, if this was true, which I doubt, the information was there to be seen.42

[372] Given the content of the DVR on 28 July and other evidence before the Court regarding TLL’s knowledge, I am highly sceptical of Mr Hughes’ denial that Onyx knew of any ongoing braking issues with CYK705 and his claim that Onyx did not send information about problems with the vehicles to TLL. I am of the view that Mr Hughes was endeavouring to protect himself, Onyx and TLL with whom he has an ongoing relationship. I reject this part of his evidence.

[374] Mr Langson claimed to have no knowledge of any vehicles continuing in service after VCAs had revealed any major defects. However, his evidence was contradicted by others. I prefer the others. I accept the balance of Mr Langson’s evidence.

[376] In his interview, Mr Purves claimed to be unaware of anyone ever raising concerns with TLL regarding vehicle availability. That is his claimed personal position and does not undermine all the other evidence strongly pointing to TLL’s level of knowledge.

[377] Mr Purves did seem aware of fleet capacity problems and problems regarding fulfilment of contractual obligations. However, he seemed to emphasise that he only really became aware of these problems after the crash.

[378] Mr Purves described NPD’s relationship with TLL as okay. That was contradicted by others. I prefer the evidence of the others.

[379] Mr Purves was self-contradictory at times, but did seem to be aware of the unsatisfactory working conditions at the Onyx yard.

[380] As far as Mr Purves was concerned, missing the “odd service” did not, at

[381] Crucially, Mr Purves confirmed that TLL kept records of servicing and supplied that data back to Onyx monthly.

[383] My strong sense is that Mr Purves indulged in an exercise of blaming Onyx (for not making vehicles available for service) and NPD (for not servicing properly) and relying on legislative compliance by Onyx and NPD to enable TLL to avoid responsibility despite being very well aware of the nature of work expected of a fleet of trucks unsuited to rubbish collection work.

[384] Mr Purves made the claim that TLL could see that maintenance was being carried out “on a regular basis”. This is either an exercise in careful choice of words or deliberate obfuscation. TLL’s own spreadsheet, if it had taken just a short time to analyse it, may show regularity in maintenance, but regularity does not necessarily equate to adequate and sufficiently frequent maintenance. Tabs 28 and 29 of exhibit 1 show up the inaccuracy of Mr Purves’ evidence. I reject his claim if it is meant to suggest that TLL knew all was well. Plainly it was not.

[385] Mr Purves consistently referred to TLL’s maintenance obligations in language suggesting that he understood the obligation as being only to pay for it. That is revealing both as to TLL’s focus, if not blinkered obsession, with costs rather than proactive safety-focused preventive maintenance. The latter seems to have been an academic concept for TLL. I do not accept as creditworthy much of Mr Purves’ evidence where, in my view, he endeavours to shift responsibility and thus blame, on to Onyx and NPD. Without a doubt, neither Onyx nor NPD are blameless, but Mr Purves’ view of TLL’s blamelessness is disingenuous.

[386] It was, in my view, in all the circumstances, especially given the size and presence of TLL in the fleet maintenance industry, simply facile for him to assert that TLL had no involvement in the waste industry and was merely a vehicle leasing provider. I was thus unimpressed that Mr Purves was unaware of WasteMINZ’s guidelines making clear reference to contractors’ responsibilities.43

[387] If Mr Purves’ evidence on the point is to be believed, TLL appears to have retained little or no institutional knowledge of, and thus learned little from, the two earlier truck crashes (one of which caused a fatality) where brake failures had

_{occurred. This reinforces my view that TLL thought itself to
be contractually}

insulated and protected by legislation imposing responsibilities separately and in isolation on Onyx and NPD notwithstanding s 18A(1)(b) of the Act and the observations of the Court of Appeal in the Central Cranes case.44 In any event, the only change clearly identified and arising from the earlier crashes was the adoption of weekly checks. These are the checks approximately 25 percent of which were being missed.

[388] Given what I quote Mr Purves saying at [287], I observe that a lack of complaint from Onyx is hardly determinative. Mr Purves’ reference to a “very robust plan” to prevent TLL being let down by an individual supplier avoids the obvious namely that that had happened twice before in similar circumstances. In my view, Mr Purves was again indulging in an exercise in unjustifiably endeavouring to shift all blame to others.

[389] I found Mr Purves’ evidence unsatisfactory and an unconvincing answer to the charge. Furthermore, I do not accept Mr Purves’ rejection of the proposition that NPD’s failures resulted (if only in part) in TLL not being prepared to adequately fund an adequate level of proactive servicing. Crucially, when pressed as to what significance TLL attributed to the long lists of repairs in the VCAs, I found Mr Purves to be vague at best, and evasive.

[390] Immediately prior to Mr Gibbons giving evidence, the prosecutor objected to the admissibility of much of his brief. In the final analysis, I did not find much of Mr Gibbons’ evidence substantially helpful.

[392] The Sterlings had about 2,000 brake applications per day contrasting with around 290-340 brake applications per day for other typical “metropolitan” trucks.

Thus brake servicing was a vital component of proper proactive maintenance on the

[393] By the date of the crash, the Sterlings were all very close to the expiry of their leases and were all at the end of their useful service life. They were obviously worn out.

[394] The entire Sterling fleet, immediately prior to the crash, was operating with brake faults and other faults that would, if detected, have resulted in all trucks being ordered off the road.

[396] There was pressure on drivers to get the job done and they were not always aware of faults with the trucks.

[397] The driver had followed standard Onyx procedure in checking CYK705 before commencing his run.

[398] CYK705 was approximately three and a half hours or one third of the way through a typical work day. The brakes of CYK705 had operated sufficiently to enable the truck to be driven and stopped hundreds of times during that morning.

[399] It was not uncommon, given the frequency of brake use on “runs”, for the low air warning buzzer to sound. Drivers would stop the truck to allow air pressure to build up. The driver tried to do that on Kauri Road, but CYK705 failed to stop.

[400] The brakes of CYK705 failed only partway down a steep hill after it had successfully stopped to pick up rubbish.

[401] The driver was very experienced, familiar with the route and not responsible for the brake failure. Nor was he responsible for failing to avert the subsequent fatal crash. He did all he could and all that could be expected of him in the circumstances which arose suddenly.

[402] I have no hesitation in inferring that the driver would have had a high level of frustration with his expressed concerns about CYK705 being ignored, but could do no more than he had done. For example, he had repeatedly drawn the noisy, leaking exhaust to NPD’s attention. The driver was repeatedly told to continue. In reality he had little practicable choice other than to obey instructions. It is inappropriate to judge his actions in driving on the day with the benefit of hindsight.

[403] Six faults in the braking system of CYK705 contributed to the cause of the crash.

[406] CYK705, once moving on Kauri Road, did not have the mechanical ability to stop. Thus nothing the driver did could have averted the tragedy.

[408] The conditions under which NPD mechanics were required to carry out much of the work specified in the PMS were inadequate and at times bad. I can readily infer that at times inspections failed to find existing mechanical faults and work was skipped because of work conditions.

[409] VCA assessments of the Sterling fleet and CYK705, prior to the crash, found numerous safety related faults. A clear longstanding pattern of serious, safety related defects being found in the Sterling fleet emerges.

[410] Notwithstanding faults found in VCAs, trucks would not always be available for repairs and would continue to work in spite of a known lack of roadworthiness.

[411] On the last VCA for CYK705, carried out on 26 February 2015, less than five months before the crash, serious safety related defects were found. About two weeks after that VCA, CYK705 passed a COF assessment.

[412] ABS is a feature of the braking system designed to prevent wheels locking up under braking and to distribute braking effort evenly. Preventing lockup maximises available braking effort and control. ABS is a basic and necessary safety feature. A post-crash inspection of the balance of the Sterling fleet revealed inoperative ABS on all vehicles. This fault and others would have resulted in immediate removal from service.

[413] Had the ABS on CYK705 been working on the day of the crash, that alone would not necessarily have averted the crash.

[414] The electronic control unit of the ABS logs any fault when the truck ignition is switched on. Three separate faults in the ABS system were logged 127 separate times and another fault 24 times. Aside from one fault relating to the dashboard warning light, the nature of the other faults is unknown. The number 127 is thought to be a maximum recordable number. Therefore, the log is a minimum number of occurrences not a maximum. Even allowing for two switch-ons per day, and operating seven days per week, the system logs reveal ABS system faults existing for two or more months prior to the crash. On a more realistic calculation the fault log has recorded six months or more of inoperative ABS. I am satisfied the various drivers of CYK705 would not have been alerted to the faults because the dashboard warning light had been deliberately removed. Given the history of the Onyx fleet, I infer the bulb removal occurred through the actions of Onyx. This is not an insinuation that any witness in this trial was personally responsible for bulb removal.

[415] The CYK705 brakes had lacked the servicing they required for a month and probably several months prior to the crash.

[416] The record of actual repairs carried out on CYK705 was not a maintenance schedule. It showed, in all the circumstances, reactive repairs of faults not proactive inspection and maintenance to avert the occurrence of faults.

[417] The records of VCAs, repairs and post-crash inspections showed very inadequate maintenance work.

[418] Onyx, sometimes with NPD’s input, operated a lockout system whereby unsafe trucks would be physically locked. Onyx controlled the system.

[419] From time to time, senior Onyx staff would overrule the safety lockout of a truck. An example was the Hino truck lockout because of an ABS fault, which lockout was subsequently overridden, resulting in the truck going out on the road. Overriding of lockouts occurred both before and after the crash. Overriding did not occur by error.

[420] The contractual arrangement between TLL and NPD was such that TLL specified the PMS and retained close control over the frequency, nature and price to be paid for work done.

[421] TLL was largely focused on controlling the cost of repairs on the Sterling fleet and, at times, refused to pay for work done by NPD.

[422] NPD held itself out as competent to do the work required of it and warranted the quality of that work. It could not subcontract its work out to others.

[423] NPD became frustrated with TLL’s attitude to payment of NPD’s invoices

and, therefore, from time to time would bill for less work than that actually done.

[424] Onyx ran a minimal fleet in comparison to its contractual work obligations vis-à-vis the City Council.

[425] For the six to eight weeks immediately preceding the crash, the Sterling trucks were being “double shifted” or returning late. As a result, Onyx failed in its responsibility to make the Sterling trucks available to NPD for servicing in accordance with the PMS.

[426] NPD raised, with TLL, its inability to properly access the Sterlings for maintenance.

[427] TLL put significant pressure on NPD to carry out work for a reduced return and at the same time the Sterlings were becoming very costly to maintain. TLL

demonstrated a poor attitude in dealing with this issue. For example, in one meeting, Mr Benadie was obnoxious to Nicholas and Warren Dobbe when costings for work were being discussed.

[428] There was financial pressure on TLL resulting in a renegotiation of its contract with Onyx whereby maintenance costs were split 50/50 between them. Thus, both TLL and Onyx were cost conscious and reluctant to spend money. Their spending decisions regarding maintenance and repairs were reactive and not proactive.

[429] Within TLL, there was a budget for maintenance and repairs of the Sterlings. Regardless of the nomenclature, there was an amount within the lease payments TLL considered was available for maintenance. It offends against commonsense and the most basic business practice that it would be otherwise.

[430] Necessary repairs to brakes of CYK705 were overlooked around two weeks prior to the crash.

[431] In order to maximise its advantage arising from an operator rating system which was vulnerable to manipulation, Onyx had VCAs carried out not long before COFs expired. By reactively repairing faults detected in the VCA, many of which were safety related, the system would record that trucks in Onyx’s fleet passed their COF assessments without fault. Many faults in the VCAs were recurring over time. This approach by Onyx saw the time gap between VCA inspections and COF inspections shorten. This reflected the work pressure on the Sterling fleet. There was also an imperative to avoid trucks being unavailable resulting in consequential financial penalty to TLL.

[432] Notwithstanding the existence of the PMS, no proper system existed whereby clear responsibility for complying with the exact timeframes could be identified. In other words, scheduling work in accordance with the PMSs became guesswork and subject to other financial pressures. Record keeping and responsibilities, contractual documentation notwithstanding, became blurred.

[433] Prior to the crash, TLL had ongoing knowledge of faulty brakes and skipped services.

[434] I draw the inevitable inference that, because of the known high costs of the Sterlings (approaching, as they were, the end of their commercial lives, thus creating ongoing losses to TLL), TLL had a philosophy of altogether avoiding costs wherever possible, minimising expenditure and acting only reactively to maintenance and repairs.

[435] TLL learned very little from the earlier truck crashes and did not properly retain any institutional knowledge acquired.

[436] TLL was prepared to allow Onyx to balance convenience against safety issues. TLL was prepared to do that with the knowledge that the costs of maintenance was an issue of concern to Onyx and that Onyx ran a fleet of minimal size.

[437] In summary, there was no systematic management of health and safety in relation to the operation of the Sterling fleet.

[438] TLL staff consisted of people with considerable heavy motor vehicle experience. TLL is a large truck leasing and maintenance company.

[439] Although Mr Purves claimed that it was not for TLL to intrude on business decisions of lessees, TLL nevertheless knew that the Sterlings were unsuitable for the work required of them. They were thus alerted to potential safety issues. It would have become apparent that this unsuitability soon began to manifest itself in the ongoing very high costs associated with maintaining the Sterlings. From early in the lease contract, TLL knew of the very high maintenance costs. Mr Benadie described these as “phenomenal”. It was obviously an issue leading to a renegotiation and sharing of the costs on a 50/50 basis between TLL and Onyx.

[440] TLL was aware of the financial pressures brought to bear on Onyx by running the Sterling fleet. Onyx raised these problems with TLL and TLL offered to sell the trucks to Onyx.

[441] As a result of its dealings with LTNZ and previous crashes and subsequent discussions, Onyx management met with TLL and discussed systemic failings.45

[443] Mr Nicholas Dobbe raised with TLL concerns about a system being operated which gave rise to the need for repetitive significant repairs without corrective measures being taken.46

[444] There were times when TLL queried NPD as to why various faults were being repetitively detected in VCAs.47 This is entirely consistent with the picture that emerges of TLL being cost conscious and looking closely at invoices and querying some and refusing to pay others in full. The VCAs would be the very document required by NPD to justify to TLL the need for invoiced repairs. Clearly there was discussion about the contents of the VCAs.

[445] Mr Dobbe discussed with TLL the poor working conditions at the Onyx yard.48

[446] TLL knew that, despite Onyx having a responsibility to enforce the servicing schedule for the Sterlings, NPD was having to take that responsibility.49

[447] NPD raised with TLL the problems arising regarding the double shifting of trucks leading to a lack of predictability in the service cycle and the skipping of

[448] NPD routinely raised with TLL the unpaid waiting time occasioned by trucks being double shifted.51 There was financial incentive for NPD to raise these lack of access problems and skipped services with both Onyx and TLL because it meant that paying work was being lost and risks of failure and liability were raised. On the other hand, given the lack of economic viability of the fleet (identified by such evidence as the 50/50 split of costs and other witnesses), the approaching end of the

lease, the worn out nature of the trucks, the operation of a minimal fleet size and contractual imperatives, there was every incentive on the part of Onyx and TLL to ignore these complaints by NPD. TLL ignored the complaints.

[451] Concerns were raised by Onyx with TLL regarding the need for continuous maintenance and repairs to the bodies and hydraulic systems of the trucks which gave rise to the offer by TLL to sell the trucks to Onyx.54

[452] Mr Purves acknowledged at the interview that the Sterlings incurred high maintenance costs.

[455] Although initially speaking in generalities, Mr Purves described a system whereby a service provider would contact TLL to suggest what servicing was due. TLL would then check through the service history of the vehicle. This evidence was

_{either untrue or TLL appeared to be unaware that around one quarter of
due services}

had been completely skipped over several years.56 TLL was aware that the Sterlings were high maintenance vehicles which had certain faults, one obviously being the brakes because of the nature of the work done.57 TLL knew that the Sterlings were never a suitable vehicle for the work required of them and were very high maintenance vehicles from the first year of service. The Sterlings were a bad business decision and were incurring losses for TLL.58 This led to TLL’s relationship with Onyx being strained. TLL was aware that Onyx struggled to service its contract with the City Council.59 TLL was aware of what was contained in the VCAs and in particular that there were long lists of defects in 2014 and

[456] I observe that the foregoing findings regarding TLL’s level of knowledge comes from a number of witnesses who could not have colluded, and nor has that ever been suggested. It also comes from contemporaneous documentary evidence.61

(i) The Court should infer that the VCAs were used as a system of identifying faults and remedying them only in the “run-up” to a COF expiry.

(ii) The Court should infer that TLL was focused on maintaining control over costs of maintenance and not on vehicle safety, which in turn negatively affected NPD’s approach to its work. It also negatively affected the working relationship between TLL and NPD.

(iv) Given TLL’s knowledge and resources, it could have taken, but failed to take, the seven practicable steps identified.

(v) Any fault on the part of the driver in either causing or contributing to the crash is irrelevant.

(vii) The complete answer to TLL’s contention that it was entitled to rely on the expertise and experience of NPD is revealed by the remarks of the Court of Appeal in the Central Cranes case.62

(i) TLL took all practicable steps as required by s 18A(1) and as defined by s 2A HSEA.

NPD, upon which TLL was entitled to rely. (iii) Hindsight is not the test to be applied.

(iv) TLL could not have known of CYK705’s (or the fleet’s) condition given receipt of information showing “regular” servicing and a lack of any complaint from Onyx.

(v) The VMR63 shows frequent servicing and that quality of work should be the focus. TLL was unaware that poor quality work was being carried out. In any event, there was active communication with NPD and use of a brake expert to consult on repairs. This, combined with a lack of physical access to the trucks, meant that TLL was entitled to

(vi) TLL imposing the PMS, in all the circumstances, including contractual arrangements and an entitlement to rely on compliance by Onyx and NPD with the law, meant all practicable steps were taken.

(vii) Physical checks on the entire fleet of around 17,000 vehicles leased by TLL would have been prohibitively expensive.

(viii) TLL did not know and could not reasonably have known of the failings of Onyx and NPD.

(ix) Initially, TLL was contractually responsible for the costs of repairs and, since 2009, these were shared equally with Onyx.

(xi) TLL has a total absence of fault. The driver acted unlawfully and the ABS system had been deliberately disabled. Without those unlawful acts, the crash would not have happened.

[459] Before dealing with the specific practicable steps that need to be addressed, I

[461] The nature and severity of the harm that may be suffered if a truck is not properly maintained, especially regarding vital safety items such as brakes, is self-evident. Here, of course, TLL is not on trial to answer for the crash itself and its tragic consequence. TLL is on trial because, as a result of the crash, an investigation was launched revealing that CYK705 should not have been on the road at all. It is the state of the truck at the top of the hill, not at the bottom, that is of relevance regarding any inquiry into practicable steps that could have been taken. However, the fact that the truck crashed vividly and unquestionably illustrates the nature and severity of harm that may result, and here did result, where practicable steps are not taken to keep brakes operating safely.

[462] The likelihood of harm from brake failure is so glaringly obvious that I need not deal with the current state of knowledge about the likelihood and nature of harm. This is no esoteric area of special industry knowledge.

[463] Here, there is really no room for debate about the current state of knowledge about the means to fix brakes and the cost and ability to do so. If a truck has faulty brakes, they are fixed or it is unsafe. Cost is irrelevant except to determine whether it makes economic sense to fix the brakes and use the truck or not use it at all.

[464] Mr Purves repeatedly referred to the large number (approximately 17,000) of vehicles leased to others by TLL and that TLL operated with approximately 110 staff. That evidence seems to underpin the submission that it is not reasonably practicable to do more than rely on “a series of contracts to ensure others carried out

the maintenance and supervision”64 to ensure daily roadworthiness. With respect,

the argument is fallacious. It appears to rely on the proposition that the larger a business of this nature gets the more insulated it can become from responsibility for each vehicle. That cannot be so. In any event, as a business of this nature becomes larger, it must be expected to apply appropriate resourcing to address health and safety issues in accordance with the law. The law requires systematic management of health and safety. If it cannot afford to do so, it cannot afford to be in that business.

[465] I deal below with the seven practicable steps referred to in the charging document as amended.

Practicable Step 1 – ensuring the brakes of the Sterling truck CYK705 were safe and lawful

[467] The position of TLL in this regard is that it believed that the brakes were safe and legally compliant. Given my findings regarding what knowledge TLL in fact had, this position is unsustainable.

[468] TLL, in part, relies on the currency of the COF. That was about to expire and in any event TLL knew that CYK705, and indeed the other Sterlings, regularly failed VCAs in the period immediately preceding COF inspections.

[469] TLL’s position is that it is excused because NPD gave no indication that the PMS was not being adhered to. This is no answer. TLL received weekly invoices. TLL knew or ought reasonably to have known, if it had taken the time to analyse its own data, that the PMS was not being adhered to by a considerable margin.

[470] NPD appears to have failed to pick up brake faults in the days immediately prior to the crash. This does not excuse TLL. The charge faced in this trial alleges offending by TLL “...on and before 10 August 2015”.

[471] TLL says that the truck should have been taken off the road after a check on

6 August. That is correct. That may have contributed to the occurrence of the crash, but crash causation is not the issue. The fact that the brake faults were not detected on 6 August 2015 is reflective of the totality of the circumstances under which NPD worked and the pre-existing systemic faults. Those systemic faults were known to and largely created by TLL.

[472] TLL’s additional position, with regard to this practicable step, is that the brake expert John Gibbons’ involvement as a consultant working for TLL was significant. The reality is that, aside from a brake audit some years preceding the crash, Mr Gibbons’ role was to ensure that brake repairs, which were carried out in my view reactively, were carried out correctly and cost effectively.

[473] TLL became duty bound in the manner contemplated by s 18A HSEA requiring it to take all practicable steps as described therein once it leased CYK705 to Onyx on the contractual terms earlier described. The statutory duty referred to in

s 18A exists regardless of the fact that TLL also took on full responsibility for maintenance pursuant to its contractual arrangements.

[474] TLL put in place the specific system of maintenance applying to CYK705 and at least purported to exercise close oversight of the discharge of NPD’s obligations. The reality, however, was that its close oversight focused on costs not on proactive maintenance.

[475] Despite an ability to audit the quality of servicing work, TLL almost entirely failed to do so. There is evidence suggesting that some auditing of the use of anti-freeze took place after an expensive engine failure and Mr Gibbons was used to monitor the quality of reactive brake repairs. Beyond that, no auditing took place. TLL had the ability to audit, but did not do so.

[476] In conclusion, TLL’s assertions regarding its beliefs about the brakes are

[477] I conclude that ensuring that the brakes on CYK705 were safe and legally compliant was a practicable step that TLL could have taken but that it failed to do so.

Practicable Step 2 – ensuring the ABS brake warning light in the cab of CYK705 was working

[478] The evidence plainly establishes that the bulb and holder had been deliberately removed. There is no possibility on the evidence that this fault came about inadvertently.

[479] While I can and do infer that the warning light was removed by the agency of Onyx, neither the time when the bulb was removed nor the person responsible is known.

[480] In my view, there is confusion in TLL’s submissions between the act of disabling the ABS warning light and the disabling of the ABS system as a whole. Plainly, the light had been removed. That disables the warning light part of the

overall ABS system, but I am satisfied that that alone does not disable the operational parts of the system itself.

[481] I am also satisfied from the evidence that the ABS warning light would only come on for a relatively short time along with other warning lights when the truck is started up in the morning. Given that there seemed to have been a lack of knowledge about the existence of the ABS system on the Sterling trucks on the part of the drivers, I do not accept that they would necessarily have noticed the complete lack of a warning light. Drivers would therefore be highly unlikely to note this fault in the DVRs.

[482] I accept the position taken by TLL that it neither had any knowledge nor could reasonably have had any knowledge that the unlawful removal of the bulb and holder had taken place.

[483] Accordingly, ensuring that the ABS warning light was operating was not a practicable step that could have been taken.

[484] Plainly, the agreed servicing timeframes were not met. Approximately one quarter of the required weekly checks were missed. This information was there to be seen.65

[485] My assessment of the evidence is that little effort was required by TLL to properly analyse the spreadsheet66 and that by doing so the results are starkly obvious.67

[486] TLL places considerable reliance upon its efforts, in discharging its legal responsibilities under the HSEA, in instituting the PMS. Regularity of checks alone would never suffice. It is both the regularity and frequency of checks and the close

importance when TLL was prepared to sit back and rely on both Onyx and NPD to discharge their responsibilities arising contractually and under the HSEA.

[487] TLL’s position is that it is not the quantity but rather the quality of services upon which the Court should focus. I accept that the quality of services obviously fell well short of what was required. However, that, in my view, resulted from a number of factors such as, first, the appalling conditions within which NPD mechanics were required to work in the Onyx yard, secondly, the frequent unavailability of trucks when a weekly check or service was due and, thirdly, the reactive approach taken by TLL to maintenance combined with its parsimonious attitude towards payment.

[489] I find that TLL was in a position where it could have, with little effort or expense, ensured that the agreed servicing timeframes were met, but it failed to do so. Accordingly, this practicable step was not taken.

Practicable Step 4 – ensuring the service regime was adequate to keep the fleet operating safely and that the divisions of responsibility for maintenance were understood by the parties

[490] Put simply, TLL’s position in this regard is that the service regime was robust and that the various parties knew exactly what their responsibilities were. It points to the assertion that the system operates with TLL’s other lessees and service providers and has done for a long time. It points to various assertions to that effect by witnesses such as Mr Purves and Nicholas and Warren Dobbe. It adds that the system involved participation by Onyx, an experienced operator, and NPD also with experience and expertise. TLL says that to the extent that there is evidence of confusion about roles, this is simply a post-crash attempt by Onyx and NPD to explain away their own shortcomings.

[491] TLL points to evidence suggesting that both Onyx and TLL ran their own systems, in the case of Onyx a whiteboard and in the case of NPD a computerised worksheet to track compliance with the PMS.

[492] Furthermore, TLL rejects the evidence and assertions that it was overly cost conscious with regard to repairs and maintenance.

[493] Against the position of TLL in this regard is Mr Wolf ’s unchallenged evidence. He considered that there were longstanding maintenance related safety defects with CYK705, the parties misunderstood their responsibilities, rights and obligations and there was a lack of co-ordination and communication between them about how servicing was performed and whether improvements were required.

[494] The views of Mr Wolf are, to an extent, supported by Mr Purves’ own evidence. In my view, he gave evidence repeatedly that TLL did not have overall responsibility for maintenance and he seemed to be at pains to emphasise that it only had responsibility for paying for maintenance. I am satisfied that that was in fact the approach taken by TLL, notwithstanding the contractual documentation. Similarly, there was contradictory evidence from the parties about where services were intended to be undertaken and TLL’s seeming lack of knowledge about where they actually took place.

[495] Additionally, I accept the evidence of NPD witnesses that TLL and Onyx were told about problems experienced by NPD mechanics getting access to vehicles and about the unsatisfactory working conditions. No change took place.

[496] The prosecutor says that there are a number of reasons why ensuring the adequacy of the servicing regime and a proper understanding, by the parties, of the divisions of responsibility for maintenance was a reasonably practicable step. The reasons are:

(i) TLL owned CYK705 and had contractual responsibility for maintenance and control over how work was performed.

(ii) TLL in fact put in place a system of maintenance with divisions of responsibility under which it agreed to retain the primary maintenance responsibilities. To fulfil that, it contracted with NPD to carry out the servicing. It provided NPD with a PMS and required NPD to obtain authorisation for all work.

(iii) Contractual documentation was ambiguous as to whose responsibility it was to check the appropriate functioning of the ABS warning light.

(iv) The contractual documentation did not specify where a particular service was to be carried out. The pre-contractual understanding and the post-contractual behaviour were at odds. Neither TLL nor Onyx properly scheduled services, although NPD assumed responsibility for that, but had to gather its own, often historical, information about vehicle engine hours and the like.

(v) There was no formal agreement between NPD and Onyx regarding scheduling of services and TLL must have known of that lack of formality.

100 hour gap for A services in the PMS extended in some sort of de facto way to 150 hour intervals, but there was also evidence that the more discretionary matters, such as a vehicle’s age and history, use, wear, etcetera, could be taken into account.

(vii) TLL took no steps to intervene to require Onyx to make hard surfaces available for servicing at its premises. TLL knew of the problem.

(viii) TLL staff had the expertise and means to ensure that the servicing regime was adequate and divisions of responsibilities were clearly understood.

[497] I conclude that arrangements for servicing were vague. TLL must have known of that.

[498] It is my view that by focusing on reactive repairs, being overly cost conscious and in effect turning a blind eye to problems raised by NPD with it, TLL failed both to ensure that the servicing regime was adequate and to ensure that the divisions of responsibility for maintenance were clearly understood by the parties. Accordingly, practicable step 4 was not taken.

Practicable Step 5 – ensuring that a procedure was followed that removed unsafe trucks, including CYK705, from the road.

[500] TLL’s position is that this was simply not a practicable step that it could possibly have taken and thus it cannot be responsible for failing to do so.

[501] This aspect of day-to-day physical management of the trucks was, in my view, very much within the control of Onyx and possibly up to a point NPD.

[502] I am satisfied that from time to time a lockout procedure was adopted and trucks were locked out.

[503] I am also satisfied that from time to time the lockout procedure was, with reckless disregard for safety, overridden by individuals in positions of management responsibility at Onyx. It is difficult to see what NPD could immediately have done about that, let alone TLL.

[504] I am far from clear as to what, if any, knowledge TLL had of the overriding of lockout procedures, but I am not satisfied that having a procedure to remove unsafe vehicles from the road was a practicable step that TLL should be responsible for. In any event such a procedure existed but was abused by Onyx.

Practicable Step 6 – ensuring that staff at NPD had access to the necessary facilities to maintain the safety of CYK705

[506] I am satisfied that NPD mechanics worked in very poor conditions at times. Those were conditions that would not have been conducive to NPD properly carrying out its responsibilities even for the weekly checks. Any experienced mechanic, including such individuals as Messrs Benadie and Purves, would or should have appreciated the safety issues arising.

[507] The position of TLL is that NPD did in fact have the necessary facilities and that those were checked by Mr Benadie. In that regard, the concentration by TLL is on the NPD workshops.

[508] Mr Benadie also gave evidence that he regularly checked the wash bay at Onyx’s yard. I do not believe that part of Mr Benadie’s evidence. He also said that it was standard practice that the technician (which I took to be a reference to the mechanic) would wash the vehicle. That evidence is also not believable. Not one other witness suggested that this was the arrangement. He likewise said that he was unaware of mechanics working in the yard.

[509] The poor working conditions were drawn to the attention of TLL. TLL took no action. TLL was in a position where it could have taken action and insisted that Onyx make the trucks available both in a timely fashion and either on a hard, safe, well-lit surface at its own yard or at NPD’s facilities.

[510] I detected a flavour of self-preservation and understatement in Mr Dobbe’s evidence that working in Onyx’s yard placed limitations on his mechanics. It is my overall assessment of the evidence, especially that of the mechanics who actually did the work, that the conditions were appalling.

[511] As a reflection of the fluid nature of the arrangements and the lack of clarity regarding responsibilities, it quickly became the norm that A services and even some of the B services were performed at Onyx’s yard. TLL was in a position where it could have and should have monitored this.

[512] Therefore, I conclude that ensuring that staff at NPD had access to the necessary facilities was a practicable step and TLL failed to take it.

Practicable Step 7 – ensuring that NPD was undertaking the repair work on CYK705 to an appropriate standard and that it was appropriately communicating about work completed and any outstanding safety issues to TLL and Onyx

[513] Without a doubt, the evidence establishes that the work carried out by NPD on CYK705 was not carried out to an appropriate standard, nor was there appropriate communication about outstanding safety issues.

[514] It is TLL’s position that it took all practicable steps to ensure NPD was undertaking repairs to an appropriate standard and that there was communication between the parties. In this regard it refers to the initial assessment of NPD’s workshop by Mr Benadie. That, of course, was some years prior to the crash. TLL also points to the fact that it employed a commercial vehicle maintenance controller who was in weekly contact with NPD regarding maintenance. In my view, however, the role of the commercial vehicle maintenance controller was largely reactive control over authorisation for reactive repairs and costings thereof.

[515] TLL also relies on evidence that there were meetings from time to time involving TLL, Onyx and NPD, and that Mr Gibbons’ consultancy services were also used. All of this, says TLL, represented three levels of oversight.

[516] TLL goes on to submit that it would, through the commercial vehicle maintenance controller, detect issues with the quality of service through repeated failures of the same type recurring with one particular vehicle and that if those circumstances arose an investigation would be instigated. The reality is that precisely that sort of issue occurred with the VCAs repeatedly finding safety faults with the vehicles. No identifiable action appears to have been taken as a result of these patterns of repeat failures.

[517] The reality is that Mr Wolf’s unchallenged evidence makes it clear that there

[518] TLL had complete control over maintenance work. It authorised all work in advance, it authorised payment and it had the records to show that there was a considerable percentage of missed services. It was also aware from the VCAs (which all preceded the COF inspections) that CYK705 was operating unsafely.

[519] The reality is that the relationship between TLL and NPD was one where safety concerns were relegated behind cost concerns. This created a barrier to NPD either raising issues or carrying out all work necessary.

[520] Thus TLL was aware of conditions giving rise to the need for auditing NPD’s work. It follows that it should have and could have audited the quality of the servicing work carried out by NPD.

[521] It is my conclusion that practicable step 7 was one that TLL could have taken, but failed to do so.

[522] In summary and for the foregoing reasons, TLL failed to take five practicable steps and therefore the elements of the charge are proven beyond reasonable doubt.

District Court of New Zealand

Police v Truck Leasing Limited [2017] NZDC 15210 (21 August 2017)