Police v Wellington City Transport Ltd [2015] NZHC 1442 (24 June 2015)

Last Updated: 30 June 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-102 [2015] NZHC 1442

NEW ZEALAND POLICE

v

_{WELLINGTON CITY TRANSPORT LTD}

Hearing:	24 March 2015
Counsel:	D La Hood and H K Goodhew for Appellant A S Olney for Respondent
Judgment:	24 June 2015

_{JUDGMENT OF WILLIAMS J}

Introduction

[1] This is an informant appeal against a sentence imposed in the District Court relating to a number of incidents in which Wellington bus passengers became trapped in closing bus doors as they disembarked.

[2] Wellington City Transport Ltd (WTCL) pleaded guilty in the District Court at Wellington to one representative count of failing to take all practical steps to prevent harm arising in the work place contrary to s 16(2)(b)(i) of the Health and Safety in

_{Employment Act 1992 (the Act).}¹

¹ 16 Duties of persons who control places of work

...

(2) A person who control a place of work (other than a home occupied by the person) must take all practicable steps to ensure that no hazard arises in the place harms people

...

(b) who

(i) have paid the person (directly or indirectly) to be there or to undertake an

_{activity there; ...}

NEW ZEALAND POLICE v WELLINGTON CITY TRANSPORT LTD [2015] NZHC 1442 [24 June 2015]

[3] The maximum penalty under s 16(2) is $250,000. WTCL was fined $22,000 and ordered to pay $500 to each of the seven identified victims – making a total reparation order of $3,500.

[4] The police appeal against the fine on the ground that the District Court Judge adopted a starting point that was too low, making the end sentence manifestly inadequate.

Facts of the offending

[5] WCTL runs Wellington city’s buses. It is a wholly-owned subsidiary of NZ Bus Limited (NZBL) which operates public transport systems in Auckland as well as Wellington. According to the evidence, WCTL operates a fleet of 379 buses and provided 21.4 million passenger trips in the Wellington region during the 12 months to September 2013. This included 7 million such trips during the four month period in which the incidents the subject of this representative charge took place.

[6] The charge related to eight incidents of passenger entrapment in the doors of WCTL’s buses. It is necessary now to briefly outline the circumstances of each of the eight incidents.

Incident 1

[7] On 8 May 2013, an adult male (who could not later be identified) and a boy disembarked from a WCTL bus. As they disembarked, the doors closed behind them, and the child’s leg or ankle became trapped in the door. The adult had to hold the boy’s body off the ground to avoid injury to him because the bus had begun to move forward. There was however no injury caused to the boy.

[8] When the bus was subsequently inspected on behalf of the police, it was found to have three faults: limited view of the rear door area, the rear door dashboard warning light was not functioning and the sensor edge rubbers on the rear doors were not working correctly.

[9] As will become clear further in this judgment, this first incident was the catalyst for some limited remedial measures being taken by the respondent. A warning was sent to drivers about the procedure for opening and closing bus doors.

Incident 2

[10] On 31 May 2013, an adult male became trapped in the front doors of a bus as he boarded. The bus began moving and he was unable to free himself because the door had closed firmly around his leg. He was forced to hop alongside the moving bus while trying to attract the attention of the driver. He eventually succeeded and the driver opened the door. The passenger suffered soreness in his leg for a short time but no lasting pain or injury.

Incident 3

[11] On 10 June 2013, a heavily pregnant female passenger together with her four year old child disembarked from a bus and the rear doors closed on her. The right door struck her in the shoulder and rib area. She pushed back to prevent the door completely closing on her, and as a result was forced by the right door into the left door while trying to exit. Her left hand, holding onto a large bag (the child was in front and had disembarked) remained caught in the closed doors. It took several pulls to free herself and her bag from the bus as the doors would not open. She was uninjured.

Incident 4

[12] On 12 August 2013, an adult female passenger disembarked through the rear doors of a bus when the doors closed on her arm. The driver then opened the door when asked to by the passenger. Though her arm was sore for a couple of hours afterwards, she suffered no permanent injury.

Incident 5

[13] On the same day, an adult female became caught in the rear doors of a bus as she disembarked. She had one foot on the ground when the doors closed on her upper body and right arm. The bus began to move off while she was trapped with

only one foot on the ground. She managed to pull herself free from the doors as the driver pulled away. She was uninjured.

Incident 6

[14] On 14 August 2013, an adult female passenger disembarked a bus with her five year old daughter via the rear door when the doors began to close on them. As the daughter attempted to disembark, she was being squashed by the closing door. The mother reached back into the bus in order to stop the closing mechanism but it did not work properly and the daughter’s elbow became caught in the door. She managed to disembark however before her body became completely caught in the doors. Both elbows were sore afterwards from the force of the door closing on them, but she was otherwise uninjured.

Incident 7

[15] On 17 August 2013, an adult female passenger was disembarking through the front doors when they closed on her trapping her shoulders. As she squeezed out from between the doors, her bag became caught trapping her thereby. The driver then opened the doors to enable the passenger to get free.

Incident 8

[16] 23 August 2013, a nine months pregnant female passenger attempted to disembark via the rear door of a bus with her three year old daughter when the doors closed on both her and her daughter. The doors hit both the mother’s shoulder and the daughter’s hand. They became jammed in the doors and could not move backwards or forwards. The mother then obtained the driver’s attention and the doors were opened. There were no injuries.

Improvement notices, practical steps, previous entrapment history and audits

Improvement notices

[17] On 16 August 2013 (before the last two of the eight incidents), the appellant issued NZBL with two improvement notices under s 39 of the Act, detailing the

appellant inspector’s belief that NZBL had failed to comply with the provisions of the Act. These notices also specify steps that could be taken to ensure compliance with the Act,² and in this case the appellant required NZBL to take steps to prevent passengers becoming trapped in bus doors (including maintaining door safety mechanisms), and inspect buses with a view to ensuring drivers had a clear view of rear doors. On 29 October 2013, the notices were reissued to WCTL.

[18] These requirements were, according to the police summary of facts, in line with the Land Transport Rule: Passenger Service Vehicles 1999 (the Passenger Service Vehicles Rule). As to rear door safety standards, the Rule provides:

A power operated door, its control mechanisms and associated equipment must be designed, constructed and maintained so that the opening and closing force of the door, or its method of operation, is unlikely to injure or trap any persons.

[19] And as to field of vision from the driving position:

The field of view from the driving position must ensure, either directly or indirectly, that the driver is provided with a clear view of both,

the interior of the passenger service vehicle ...; and

any person in the exterior vicinity of any door used by passengers.

[20] It seems at this point, and in response to the notices, both NZBL and WCTL undertook a comprehensive audit of the systems in place in relation to the risk of passengers becoming trapped in bus doors. I will return to the audit below.

Practical steps

[21] According to the summary of facts, the practical steps that WCTL could and should have taken to avoid the eight incidents were:

(a) to have improved rear visibility for drivers at an earlier time by relocating or adding mirrors or by installing closed circuit cameras to ensure the driver had an unobstructed view of disembarking

_{passengers both from within the bus and immediately outside the rear}

² Health and Safety in Employment Act 1992, s 39(5).

door including when the bus was carrying a full standing load of passengers;

(b) to have retrofitted sensitive edge rubber sensing systems to all rear doors at an earlier time; and

(c) to have taken earlier steps to ensure that bus doors and their safety mechanisms were regularly checked and maintained, and that there were sufficient records of such testing and maintenance.

Previous entrapment history

[22] The evidence was that the passenger entrapment problem had in fact arisen earlier. In 2007, the NZ Transport Agency (NZTA) carried out a fleet audit which identified various failings in the maintenance of buses operated by WCTL. And in February 2008, NZBL advised NZTA that it could undertake training in diagnosis and repair to address entrapment issues arising because sensitive edge doors were not working. NZBL advised that such doors would be inspected every two months but it was common ground that between that date and the date of the first of the eight incidents, bus doors were not checked or tested on a sufficiently regular basis and testing records were insufficient.

[23] According to the evidence of NZBL’s southern regional chief operating officer, Ms Tonia Haskell, the respondent had been working with the Department of Labour since as early as 2009 in relation to entrapment incidents.

[24] According to the summary of facts, from 2010 on, police and NZTA had worked with NZBL to improve the Wellington fleet after ongoing checks revealed continuing failures in maintenance, reporting, training and regulatory compliance systems practice.

[25] The Commercial Vehicle Investigation Unit (CVIU) of the police became aware of the entrapment issue sometime early in 2012 when NZBL requested its input as to the seriousness of the issue and whether any steps needed to be taken.³

[26] On 23 February 2012, a driver raised a mirror visibility hazard concerning the rear doors of a range of bus makes and models operated in the NZBL fleet.

[27] At sentencing, Ms Tonia Haskell, NZBL’s southern operating officer (effectively chief operating officer for WCTL) filed an affidavit. It summarised NZBL’s and WCTL’s efforts in addressing vehicle safety issues. She pointed out that NZBL had achieved tertiary level ACC safety accreditation. In order to achieve this accreditation, NZBL was, it was said, audited against ACC workplace safety management practices audit standards, including standards in relation to health and safety planning, review and evaluation as well hazard identification, assessment and management.

[28] According to Ms Haskell, the system now in place requires that all door entrapment incidents be notified within two hours, and full investigations including root cause analysis must be carried out. This work must be completed and reported within four weeks. In addition, she advised that WCTL’s vehicles are assessed through six monthly certificate of fitness tests carried out by Vehicle Testing New Zealand, and roadside inspections conducted by CVIU and NZTA. Such assessments, it was deposed, covered compliance with the door safety rule referred to above.

[29] Ms Haskell advised there was no New Zealand standard for safe closing pressure of bus doors before October 2013. The Australian standard is 15 kilograms of closing pressure but NZBL adopted a more conservative 8 kilograms standard. In October 2013, after the incidents the subject of this charge, NZTA adopted the

_{Australian standard pressure in its guidelines.}

³ CVIU did not provide the input requested. Instead it suggested the matter be referred to NZTA

to be addressed at a wider level. See the email correspondence below at [31].

[30] Ms Haskell advised that WCTL was thus aware of the entrapment issue in

2012 and sought input from CVIU as to what should be done to mitigate entrapment risk. A communication to the CVIU from NZBL on 21 May 2012 provided in part as follows:

Many other [NZBL] buses have mirrors that are partially obscured when the front door of the bus is open. Mainly this is because of the mirror’s attachment to the front door or because of the use of the plug type door, where the door seal protrudes when the door is open partially obscuring the view. My research so far indicates that there is a varying level of concern amongst drivers with the few I have spoken to believing that the mirrors are not ideal but that they are adequate.

While my research is not yet complete, the Tramways Union, Tom and I agreed today that it would be useful to get an opinion from the CVIU perspective on this issue.

Would you mind commenting on your view on (sic) the seriousness of the issue, if you think steps need to be taken to improve visibility for those vehicles that have some impairment, and anything else you feel is relevant? This may assist us in moving forward.

[31] In response, Senior Constable Matt Arthurs advised on 28 May that this ought to be dealt with on a national basis and passed the matter onto Alex Currie, National Technical and Safety Advisor, CVIU. On 25 June Mr Currie then advised:

Unfortunately I believe this is a problem that should be taken up with the

NZTA as I can only advise at a low level ...

Apart from mounting a camera of some sort to a position behind the front door opening that would give you full view of alighting passengers I’m not sure how to solve the issue.

Nationwide audit

[32] The issue, it seems, proceeded no further until the improvement notices were issued in August 2013. Ms Haskell advised that although the improvement notices were to WCTL, NZBL then undertook a national fleet-wide audit. She advised that at a total cost of just under $1 million, changes were introduced across the fleet including:

(a) retro-fitting sensitive edge rear door rubbers to buses that had sensitive edge doors but not sensitive edge rubbers;

(b) adjusting bus doors to ensure that door closing pressure was within

NZTA guidelines;

(c) installing CCTV cameras and updated monitors and adding/repositioning mirrors where necessary to improve driver visibility of the rear door area (in consultation with drivers);

(d) installing bus stop brakes that are activated when the rear doors are open (on buses that previously had an accelerator cut out mechanism);

(e) installing a handbrake alarm that warns the driver when the handbrake is not applied when the engine is off;

(f) reviewing the maintenance regime for doors and developing a new standard operating procedure; and

(g) fitting blue sleeves to interior lights to reduce windscreen reflection glare.

[33] In addition, a specific driver training course on passenger safety has been designed and introduced. All southern region drivers have completed the course at a nationwide programme cost of $70,000, and amendments were made to maintenance management software (Fleet Focus). Health and safety software has also been updated, and an Engineering Authority has been established within NZBL led by the most senior engineer within the company.

[34] Finally, two independent reviews of NZBL maintenance practices were underway as at November 2014, the date of the chief operating officer’s affidavit. The first relates specifically to doors and includes an evaluation of whether or not the inspection regime meets the manufacturer’s guidelines; and the second a comprehensive review of maintenance practice, intervals, standards and compliance due was to be completed in the first quarter of 2015.

The decision under appeal

[35] The respondent was sentenced by his Honour Judge Davidson in the District

Court at Wellington on 19 November 2014.⁴

[36] The Judge made the following observations in his sentencing remarks:

(a) The incidents had occurred despite the fact that door entrapment hazard had been identified for some years and a variety of remedial steps taken by WCTL and transport industry more generally.⁵

(b) Despite the risks, little was in place by way of maintenance to mitigate these risks until August 2013 (after the incidents). The Judge acknowledged that following the improvement notices, the respondent took “intensive and expensive remedial action”, and by its guilty plea, accepted that there practical steps that could have been taken to

mitigate the risks.⁶

(c) WCTL is a large operator and its owners of 10 years have put into place significant and costly measures to ensure compliance with safety obligations. The Judge considered that it was clear that the respondent took passenger safety seriously.⁷

(d) The correct approach to sentencing is to assess the respondent’s culpability. Entrapment, the Judge considered, was an “obvious hazard” and the remedial actions “seem[ed] fairly obvious” with the

_{risk of serious injury “equally obvious”.}⁸

⁴ Police v Wellington City Transport Ltd DC Wellington CRI-2014-085-002268, 19 November

_2014.

⁵ _{At [3].}

⁶ _{At [4].}

⁷ _{At [8].}

⁸ At [9].

(e) Mitigating features were however the respondent’s prompt guilty plea

and the comprehensive remedial steps taken since the eight incidents.⁹

[37] The sentencing analysis was then carried out as follows:¹⁰

I have to say, assessing the degree of culpability here is not easy. On the one hand, the risk of door entrapment is obvious, as is the risk of serious resulting injury. It is clear to me that the company was acutely aware of the risk and prior to the period of the offending, had a detailed safety system in place. The defendant company’s sense of comfort that these perhaps were enough is reinforced by the lack of clear industry or regulatory standards until after the period of the offending.

In my view, this must be seen therefore, as a case of one of lowish culpability. I have to say that I am left with an overwhelming sense, in considering all material and submissions, that this is a risk that can never be eliminated but one which can only be addressed by mitigation. The defendant company accepts, by its plea of guilty, that its degree of mitigation was inadequate but has improved substantially since.

Doing the very best that I can, I would fix a fine with a starting point of

$35,000. The first discounts that I would allow for are the remedial steps, at significant cost, undertaken by the defendant company; its co-operation with

the investigation and prosecution process, which in my view went beyond what is required of an employer; and its good safety record. Those three

discounts would lead to a 15% reduction in the starting point of the fine. There, of course, then needs to be a full discount for the defendant

company’s prompt plea of guilty. All of that would lead to a fine in the order

of $22,000 to $23,000.

[38] The Judge then arrived at a $22,000 final fine and ordered $500 in emotional harm reparation to each of the victims able to be identified (only seven were identified, the victims in the first incident could not be identified for the purposes of reparation).

Grounds of appeal

[39] The appellant argues that the starting point adopted by the District Court was manifestly inadequate in light of the following factors:

_{(a) the nature of the offending;}

⁹ _{At [10].}

¹⁰ At [14]-[16].

(b) the period of time over which the offending occurred and the number of actual and potential victims;

(c) the degree of the offender’s departure from the Passenger Service

Rule;

(d) the obviousness of the hazard that passengers might be trapped in and/or injured by bus doors;

(e) the offender’s actual knowledge of the hazard;

(f) the failure to properly record and investigate entrapment incidents; (g) the availability of means to eliminate the hazard; and

(h) the potential risk of serious harm.

Approach to appeal

[40] A sentence appeal is brought pursuant to s 244 of the Criminal Procedure Act

2011. Section s 250(2) of that Act provides that this Court must allow an appeal if satisfied that the sentence imposed at first instance was in error and a different sentence should be substituted.

[41] In accordance with the decision of the Court of Appeal in Tutakangahau v

R,¹¹ the pre-Criminal Procedure Act “error principle” approach continues under the

2011 Act. The focus remains on whether the sentence imposed was within range rather than the process by which the sentence was reached. Any error must be material. The appellate Court will not merely tinker with the sentence.

Principles specific to informant appeals

[42] In the quasi-criminal context of health and safety appeals, there are further considerations the appellate Court must take into account. These are:

¹¹ Tutakangahau v R [2014] NZCA 279.

(a) The legitimate scope of an informant’s appeal is confined to cases where there is solid grounding for treating a sentence as manifestly inadequate or inappropriate.¹²

(b) Where the Court finds that a sentence should be increased on the ground of manifest inadequacy, the increase will not be to a level that would have been imposed were the appellate Court the original sentencing Court. Rather, it is to be increased to the minimum required to remedy the manifest inadequacy.¹³

The leading decision on workplace accident health and safety appeals

[43] The leading authority on appeals against sentence in the workplace health and safety area is the decision of a full Court of this Court in Department of Labour v Hanham & Philip Contractors Ltd & Ors.¹⁴

[44] A sentencing Judge must, the Court said, go through the following steps:¹⁵

(a) Fix reparation in accordance with the provisions of s 32 to s 38 of the Sentencing Act 2002 taking into account any offer of amends and the offender’s financial capacity.

(b) Fix a starting point for the fine in accordance with Taueki methodology.¹⁶ That is, reaching a starting point by assessing overall culpability by reference to the features of the offending, and then adjusting that starting point in light of aggravating or mitigating circumstances relating to the offender.

(c) Consider the impact that the reparation award might have on setting an appropriate fine.

¹² R v Cargill [1990] 2 NZLR 138 (CA) at 150; cited in Department of Labour v Hanham & Philip

_{Contractors Ltd & Ors [2008] NZHC 2076; (2008) 6 NZELR 79 (HC, Randerson and Panckhurst JJ) at [81].}

¹³ Sipa v R [2006] NZSC 52; (2006) 22 CRNZ 978 (SC) at [9]; cited in Department of Labour v Hanham & Philip

_{Contractors Ltd & Ors, above n 11, at [81].}

¹⁴ _{Department of Labour v Hanham & Philip Contractors Ltd & Ors, above n 12.}

¹⁵ _{At [80].}

¹⁶ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 375, (2005) 21 CRNZ 769 (CA).

(d) Assess the defendant’s financial capacity to pay a fine.

(e) Assess whether the overall burden of the reparation and fine is proportionate and appropriate.

[45] The Court in Hanham identified the following “bands” of culpability in assessing starting point:¹⁷

(a) Low culpability: up to $50,000;

(b) Medium culpability: between $50,000 and $70,000;

(c) High culpability: between $100,000 and $175,000; and

(d) Extremely high culpability: higher than $175,000.

[46] The factors relevant to assessing culpability were said by the Court to include:

(a) the operative acts or omissions assessed by identifying the

“practicable steps” that the offender should have taken;

(b) the nature and seriousness of the risk of harm as well as the risk actually realised;

(c) the degree of departure from standards prevailing in the relevant industry;

(d) obviousness of the hazard;

(e) availability, cost and effectiveness of the means necessary to avoid the hazard;

¹⁷ Department of Labour v Hanham & Philip Contractors Ltd & Ors, above n 12, at [57].

(f) current state of knowledge of the risks involved and of the nature and severity of the harm that could result; and

(g) current state of knowledge of the means available to avoid the hazard or mitigate the risk.

[47] Counsel followed this overall analytical framework in making their submissions and I propose generally to adhere to it in the analysis that follows.

Submissions

The appellant

[48] The appellant submits that if the factors set out above at [39] had been properly taken into account, culpability would have been assessed at the lower end of the “high culpability” band of Hanham and so would have attracted a starting point of around $110,000.

[49] The appellant takes no issue with the discount of 15 per cent for remedial steps and co-operation, or with the discount of 25 per cent for guilty plea. Nor is any issue taken with the reparation order.

[50] The appellant submits therefore that the end fine should have been in the order of $70,125.

[51] The appellant argues that WCTL had known of the risk of entrapment for some years having received multiple warnings from the police, NZTA, drivers and incidents. Although there were some signs of a response in 2012, the company had taken no concrete steps to fix the problem until the improvement notices were

issued.¹⁸

[52] Although none of the eight incidents involved serious injury, there remained a high risk that such injury would occur because, unlike the usual position with

¹⁸ I refer to the 2012 email exchange set out above at [30]-[31], and the 1999 Passenger Service Vehicle Rule set out above at [18]-[19] as the appropriate standard in terms of operation of doors and visibility in the door-well.

respect to workplace safety, WCTL provided services to the general public untrained in appropriate workplace safety procedures, and unaware of the risks of entrapment. Mr La Hood argues that in the circumstances where 21.4 million passengers are carried per annum, a significantly wider class of potential victims is exposed to danger with less ability to protect themselves. Mr La Hood emphasises this unique

‘general public’ aspect of this case justifies its inclusion in the high culpability band.

[53] Despite these factors, the appellant submits that WCTL failed to take any, or any adequate steps as outlined in the summary of facts until issued with improvement notices.

The respondent

[54] The respondent submits that the starting point of $35,000 was in range and available to the Judge. There is no material error, the respondent submits, in the District Court’s assessment of culpability and the end point arrived at by the Judge was clearly available to him.

[55] The respondent submits that the appellant has failed to distinguish between the hazard and the risk: the hazard being that of a person becoming trapped in a bus door and, as a consequence, that person being unable to free him or herself and the driver being unaware of the entrapment and setting the bus in motion; the risk then, being the probability that the particular hazard will cause harm to a passenger through a series of highly unlikely events then combining in an even less likely sequence into a single incident.

[56] Mr Olney submits that WCTL had several measures in place to mitigate the hazard so that the relevant risk is that which remains despite the measures. Mr Olney submitted that the residual risk was minute given the number of buses in the fleet, the number of passenger trips per year, and the number of actual recorded entrapment incidents.

[57] The company submits that the risk and the means of mitigating it was, in this case, far from obvious. Indeed it took a full safety audit costing near $1 million for the risk to be adequately identified and mitigated. Mr Olney submits that the record

showed WCTL had done too much prior to May 2013 to be treated as highly culpable. Entrapment was not an unmanaged hazard at WCTL, he submitted. It had always been highly managed.

[58] In his written submissions, Mr Olney reviewed sentences imposed in 15 other workplace safety cases involving culpability ranges from low to high. Based on these he submitted that medium culpability cases all involved at least three of the Hanham factors set out above at [46]. Of all of them, only obvious risk was present in this case, he submitted.

Additional report not before the District Court

[59] During the course of argument, Mr La Hood referred to a report that he said “detailed and recorded 149 trapping incidents for the period between 1 August 2011 and 30 July 2013 in the Wellington region.” Mr La Hood submitted that this report had been discovered during the course of the appellant’s investigation. It was, he said, raised by the police at sentencing and WCTL did not dispute its content.

[60] The respondent submitted that this report was not properly before either Judge Davidson in the District Court or this Court on appeal, and it was inappropriate, even dangerous, to rely on it without a careful assessment of its contents and the conclusions that a sentencing court may properly reach based upon it. It was, the respondent submitted, now too late to rely on it.

[61] I will return to that report below.

Analysis

[62] The issue for me then is whether the Judge adopted a starting point that, for any reason, was wrong in principle. Standard Taueki¹⁹ methodology is to be applied to that question subject to the significant gloss placed upon it in the workplace safety context by the decision in Hanham to which I have already made reference. In order

_{to determine whether an error of principle has been made, I propose to apply the}

¹⁹ R v Taueki, above n 16.

seven Hanham factors I have set out at [46] and, by reference to each of them, to consider Judge Davidson’s reasons.

Operative omissions and practical steps

[63] At [4] of his sentencing notes, the Judge found that by its guilty plea, WCTL accepted that there were practical steps available in order to mitigate the risk of entrapment that “were not adequately taken”. These steps included, he found, failure to provide improved visibility for drivers of activity at the rear door; failure to fit door edge rubber sensors; failure to undertake regular maintenance of these safety features; and failure to provide adequate driver education.

[64] As the Judge accepted, the risk of entrapment can never be entirely eliminated. Driver error and door sensor malfunctions are both risks that will always remain, no matter how good the company’s maintenance and education programmes. It is clear also that WCTL did take some, albeit inadequate steps to mitigate risk: mirrors were in place, as were sensitive edge doors (though in many cases, without the more effective pressure sensitive rubber edges). But, even having made some minor improvements to safety hardware, maintenance and driver training clearly fell short of the standard required.

[65] WCTL eventually did take all of these steps and more, but it was not until after improvement notices were issued in late 2013.

[66] Importantly, WCTL had known for some time prior to these eight incidents that it needed to do more. WCTL knew that the steps it had taken had not solved the entrapment problem. WCTL knew that blind spots around the rear doors were created whenever the front doors opened because the front doors occluded rear facing internal mirrors.

[67] While this situation was, according to Ms Haskell’s affidavit, assessed by some drivers as “not ideal but adequate,” such an assessment is difficult to credit. The point at which the doors of the bus are opened by the driver is the very point of risk. It is the only point at which passengers embark or disembark the bus through its rear doors. The occlusion must have meant that the rear doors were only partially

visible to the driver every time passengers got on or off the bus through those doors. It cannot be mere 20/20 hindsight to suggest this was a problem crying out for immediate attention. Nor do I accept that the necessary practical steps to fix the problems were less than obvious. The solution was either to shift the forward mirror to remove the occlusion or if that did not work, introduce CCTV cameras. It was just a question of money. I understand cameras were eventually introduced in some buses.

[68] And, WCTL must have known at some level that its maintenance and incident recording systems were not what they should have been. Incidents prior to

2013 had, for example, been attributed to door mechanisms and warning light malfunction.

Nature and seriousness of risk of harm and risk actually realised

[69] The sentencing Judge accepted that the risk of entrapment was obvious as was the risk that serious injury could result.

[70] There are a number of factors to be considered under this heading. First, WCTL provides over 21 million passenger trips each year. That means 7 million such trips during the four month period in which the eight incidents occurred. By any analysis the risk of entrapment that these numbers suggest is tiny compared to the company’s overall passenger load. These numbers cut both ways however. The unique public safety dimension of this case compared with prior prosecutions under the Act is the sheer number of members of the public (untrained in workplace safety practice) who are exposed to the danger of entrapment. This suggests that particular caution is required of the passenger transport company. And of course we cannot be sure that the eight incidents are the only entrapment incidents. There could well have been many such incidents that went unrecorded by WCTL’s incident recording

systems²⁰ or unreported by the driver and/or passenger involved.

[71] In this context, Mr La Hood pointed also to the evidence of 149 (or 144 because of the risk of double-counting of some of the incidents the subject of the

²⁰ None of the eight incidents was, according to Mr La Hood, recorded in WCTL’s accident

register.

charge) other incidents recorded in a “register” of customer complaint incidents disclosed during the course of the prosecution. This register is not administered by WCTL. Rather, it is administered by Metlink, the public transport agency within the Greater Wellington Regional Council. Metlink funds or subsidises all bus, school bus, train and ferry services covering Wellington city, Lower Hutt, Upper Hutt, Porirua, the Kapiti Coast and Wairarapa. Customers may provide feedback or submits complaints to Metlink via an online feedback form or by calling and 0800 number. The register is a record of complaints and feedback to all passenger transport operators in the Wellington region, including WCTL.

[72] As I have said, Mr Olney submitted that this register was not properly before Judge Davidson and in any event had not been analysed to determine which of the recorded incidents was in fact an entrapment. The register, he submitted, needed to be fully interrogated before it could be said to have probative value at sentencing. This was not done.

[73] I have reviewed counsel’s written submissions before the sentencing Judge and there is no reference to this document although I do not doubt that prosecuting counsel made oral reference to it.

[74] On balance, I agree that it would be dangerous to place any significant weight on this particular incident register without it being formally put to the Judge and a proper assessment made of its implications. I certainly do not feel that it is appropriate, or indeed necessary, for me to undertake that assessment on appeal in lieu of it being done by the sentencing Judge. In any event, I am satisfied that WCTL had ample other warnings of the inadequacy of the measures it took.

[75] For now it is sufficient for me to conclude that entrapment was a known risk which seems to have been realised in minor non-injury incidents with sufficient regularity for the company to be on notice as it were. I am able to extrapolate further that, although the harm actually caused to victims has not so far been serious, it is relevant that serious injury due to entrapment is nonetheless a real possibility. As the

Act makes clear, the Act’s purpose is fundamentally preventive²¹ and the cases treat the lack of a serious injury accident to this point is not to be treated as mitigatory.²²

[76] I agree with the Judge’s conclusion under this heading.

Departure from relevant industry standards

[77] Under this heading the Judge took the view that there was a “lack of clear industry or regulatory standards” until changes were made by NZTA after 2013.

[78] The relevant standard was that contained in the 1999 Passenger Service

Vehicles Rule set out above at [18]-[19].

[79] There were clear departures from this Rule. First, although all rear doors had anti-entrapment safety systems installed and the closing pressure of doors was set by WCTL at 8 kilograms, poor maintenance and checking systems undermined these risk mitigation measures. There seems also to have been a problem with the design of sensitive edge doors (the company eventually changed to pressure sensitive rubber edged doors on all buses), but the evidence does not disclose just what that design problem might have been.

[80] Nor did WCTL have proper records of maintenance and checks on its safety hardware.

[81] A further problem related to the occlusion, when the front door opened, of a full view of either the whole interior of the bus or the exterior vicinity of the rear door.

[82] I do not accept WCTL’s submission or the Judge’s conclusion that the wording of the rule was too non-specific to represent a clear regulatory standard. It did not prescribe how the standard should be met, but the standard itself was in my

_{view clear. In particular, clear vision of the important door area was required as was}

²¹ _{Health and Safety in Employment Act 1992, s 5.}

²² See for example Department of Labour v VLI Drilling Pty Ltd DC Greymouth CRI-2011-018-

001036, 26 October 2012 at [33]; citing Central Cranes Ltd v Department of Labour [1997]

3 NZLR 694 at 701. The latter is an example of a case where no actual harm was suffered.

proper maintenance of the door safety mechanism itself. Neither was provided and, as I have said, WCTL was aware before May 2013, of its non-compliance problems.

Obviousness of the hazard

[83] The Judge found the hazard to be obvious as was the risk of serious injury. He added that the company was “acutely aware” of it. I agree with that conclusion as far it goes. WCTL’s answer is to say that although the risk was obvious, it was already a highly managed one and the means to achieve effective mitigation were by no means obvious. The company pointed to its own million dollar audit following receipt of the improvement notices as proof of the lengths that had to be gone to before effective answers to the problem were found.

[84] I find that submission quite unconvincing. WCTL knew that the field of view available to drivers in the interior of the bus was occluded at the crucial risk point. The company also knew that while sensitive edge rear doors provided protection, entrapment continued. Indeed the first incident in May 2013 and subsequent investigation underscored that problem. Maintenance had been identified as an issue for the fleet in 2007 and the failure of sensitive edge doors had been identified in February 2008. A promise was made to inspect every two months but this either did not happen or was itself insufficient. WCTL pointed to its ACC Safety Accreditation and six monthly certificates of fitness for all of its buses. But these points do not, in my view, meet the concrete prior evidence of problems that was available to WCTL from an early stage and required urgent remedial steps.

Availability, cost and effectiveness

[85] The Judge properly noted that the steps ultimately taken by WCTL to address the issue were significant, complex, expensive, and took some time to work through. There were simple practical steps to be taken in relation to onboard visibility, but, it must be accepted, there were also systemic changes required to fleet maintenance and driver education. The size of the fleet and number of drivers, both in Wellington and nationally, necessarily made these changes complex.

[86] I conclude therefore that although part of the answer to entrapment was simple and, in the end, just a matter of money, that was not the whole story. I agree that a proper response to the issue required the sort of comprehensive treatment that WCTL ultimately undertook. Within that conclusion however is also the fact that simple practical measures in relation to onboard driver visibility could have been taken much earlier. They need not have waited for the company’s comprehensive response to maintenance and education.

Current state of knowledge and risks

[87] These matters have been adequately and variously addressed under headings above.

Conclusion as to culpability

[88] Pulling all of these factors together, I am unable to agree with Mr La Hood that this case falls into the high culpability band. I would certainly have concluded there was high culpability had the evidence been that WCTL had taken no steps at all to address entrapment issues prior to the improvement notices. Rather, I agree with Mr Olney, that this was a risk that had been managed to some extent by the company for some considerable time.

[89] Having said that, on my assessment of the culpability factors I find myself unable to agree with the Judge that culpability belonged in the low band.

[90] Two factors stand out in driving me to that conclusion. The first is the factor that necessarily differentiates this case from most other prosecutions under the Act: the class of people facing the danger of entrapment was, and remains very large –

21.4 million passengers on an annual basis. Some members of this class are highly exposed to the hazard in the sense that passengers may be old and frail, young and unthinking, disabled physically or mentally, or just plain distracted at the crucial moment. Unlike employees, there are very limited opportunities to train such people to avoid entrapment or to deal with it if it happens.

[91] I accept that the probability of entrapment, let alone serious injury resulting from entrapment, is very low (and that must be weighed in the balance) but the impact is potentially very significant if that probability is realised. As the Judge accepted, serious injury is an obvious risk.

[92] The second factor is that WCTL well knew before May 2013 that entrapment was a risk that had not been adequately mitigated by the measures taken to that point. WCTL seemed in no real hurry to take even the practical interim steps available in respect of driver visibility. Not only had there been ample warnings prior to May 2013, but each of the eight incidents after May 2013 was itself a warning. It seems however that the company’s internal incident recording systems failed to capture them.

[93] It is my view that these two major factors lift this offending into the medium culpability range.

[94] That said, I would locate culpability at the bottom of that range both because this is an informant appeal and that is the minimum adjustment necessary to correct the error;²³ and because it is, in any event, the correct location when the factors to which I have made reference are properly weighed.

[95] I therefore take a starting point of $50,000. I deduct 15 per cent or $7,500 for the comprehensive remedial steps eventually taken by the company, its co-operation during the course of the investigation and good safety record. From $42,500 I then deduct 25 per cent or $10,850 for guilty plea. Reparations will, of course, remain as

_{set by the District Court.}

²³ See for example R v Cargill, above n 12; and Sipa v R, above n 13.

Disposition

[96] The appeal is allowed. The fine of $22,000 is quashed and a fine of $31,650 is substituted. The original reparation order of $500 per identified victim remains.

_{Williams J}

Solicitors:

Crown Solicitors, Wellington

Russell McVeagh, Wellington