Auckland Council and its contractors have been ordered to pay $255,000 in fines and reparations over the death of a 19-year-old woman.
Refuse worker Jane Devonshire was killed in August last year when a rubbish truck, owned by Auckland Council contractor Onyx, went over a cliff in Birkenhead on the North Shore.
Devonshire, of West Harbour, was in her fifth week on the job working as a rubbish runner. She was standing on the left side of the cab when the brakes failed, causing it to careen 120m down a hill and off a cliff.
The North Shore District Court heard at sentencing today that Devonshire was thrown from the truck and was crushed when it landed on her. The driver had to be cut from the cab.
The truck was found to be overdue for a major service and the brake issues had been identified but not rectified and the warning lights on the dashboard weren't working, according to an agreed summary of facts.
Two weeks earlier, the same truck broke down on the side of the road and the mechanic identified the third axel break linings were low. A job card was filled but got missed in a pile of paperwork until after the incident.
The parties charged were Auckland Council, Veolia ES Technical Solutions (formerly known as Onyx Environmental Services), which was contracted to collect rubbish bags, N P Dobbe Maintenance Limited, which was contracted to maintain the fleet, and Truck Leasing Limited, which owned the trucks.
They were all charged under the Health and Safety in Employment Act with failing to take all practical steps to ensure employees were not harmed. Police led the prosecution.
The council insufficiently audited its subcontractors, Veolia insufficiently oversaw its fleet and did not keep sufficient records and N P Dobbe inadequately maintaining the trucks, the Crown submitted.
All three parties pleaded guilty, and also admitted they failed to properly communicate with each other.
Collectively, Judge Thompson ordered Devonshire's family be paid $120,000 in reparations for financial loss and emotional harm and $15,000 to the truck driver.
He also imposed the following fines:
• Veolia $65,000
• N P Dobbe $22,000
• Auckland Council $33,000
Devonshire's mother, Rona Topia, told the Herald after sentencing she was pleased with the result and was glad it was almost all over, fourteen months later.
"It's been a long journey and it's been a lot of waiting and seeing what's going on. So I'm glad we've got this part over, we've just got the other one to go.
"It's not about being able to move on, it's sort of just have it finally being done and dusted so we can carry on with what she would have been doing."
She plans to use the pay-out to take her other daughter, Serenity, to Fiji - it was one of the holidays Devonshire was planning before she died.
Topia said she would put the rest in a trust for Serenity and Devonshire's other siblings.
She accepted the apologies of the council, Veolia and P B Dobbe's apologies totally and pleased they had made changed to make sure no one else had to go through a similar situation.
"I still miss her, but she's still with us. I've still got her room the same way she left it the day she died so I haven't changed it."
Truck Leasing Limited has been also been charged for insufficiently monitoring its fleet but has pleaded not guilty and was not part of sentencing. It will defend the charge over a six week trial set down for next year.
In his victim impact statement read aloud in court, Devonshire's father said he was still shaken by the death of his "baby girl" and eight months later the pain of losing her was still as raw as when it first happened.
"If I see someone who looks like Jane I become emotional."
Since her death, he's had to leave his job and suffers sleepless nights.
"I couldn't take the pressures of work, I got to the stage where I'd just had enough."
He said the accident should never have happened and asked why nothing was done to prevent his daughter's death.
Her mother, Rona Topia, said in her statement she was still in shock that her bubbly, happy-go-lucky daughter who loved to work was gone.
"She was the daughter that was our hope, she was the glue that held us together, she was the only one who had a job and the light of our lives."
The Crown submitted responsibility for the crash should be split - Veolia 35 per cent responsibly, N P Dobbe 30 per cent, Trucks Leasing 20 per cent, and Auckland Council 15 per cent.
Veolia was also already on notice following another rubbish truck death in 2007, only a few streets away from the incident involving Devonshire.
Counsel for Veolia, Malcolm Crotty, said while there was nothing the company could do to lessen the family's loss, it apologised unreservedly for the incident.
Five executives were present in court to reinforce their remorse, Crotty said.
Veolia accepted it inadequately supervised the maintenance of the fleet and there were inadequate communications between the three subcontractors.
Crotty asked Judge Thompson to take into account that Veolia paid for Devonshire's funeral which it "was happy to do so" but was not seeking a dollar for dollar discount of how much it paid to its fine.
Since the incident, Veolia had changed many of its practises including bringing maintenance in-house, more inspections and a renewed focus on training.
N P Dobbe said they also accepted they were at fault but said not one person was totally responsible. They were also a "humble" company which had not turned a profit in five years.
Auckland Council's lawyer Stacey Shortall said the body's chief executive wanted to be at the hearing but couldn't make it and was represented by a senior member of an executive team.
Shortall said the council apologised unreservedly to Devonshire's family and friends and reiterated "its deepest sympathy".
"It is heartfelt and it is genuine."
The council also offered "genuine sympathy" to the driver of the rubbish truck who was injured in the crash.
Shortall said the council accepted it "should have done more" to oversee Veolia's maintenance plans and practises of its fleet which is why it plead guilty despite an expert review concluding its systems were sufficient.
"It accepts it could have done more and it wants to show leadership."
Since the incident, procedures have been reviewed, changed and has more oversight of Veolia's maintenance plans, Shortall told the court.
Auckland Council paid for Devonshire's headstone and Shortall said that should be one of the factors the judge took into account.
Judge Thompson said no amount of money could compensate for the loss endured by Devonshire's friends and family but it could provide a "material comfort at least".
All of the parties had examined their protocols following the incident and "found them wanting" so had made changes, he said.
"It is so sad that it has taken this tragedy to have taken these steps which with hindsight seem so obvious and could have prevented this tragedy coming about."
Judge Thompson accepted the three parties' remorse and regret was sincere and genuine, their offers of financial assistance and that they had examined and changed their practices following the crash.
The judge apportioned responsibility thus:
• Veolia was found to be 35 per cent responsible and so ordered to pay that proportion of the reparations;
• P D Dobbe was found to be 25 per cent responsible;
• Auckland Council was found to be 15 per cent responsible.
The three parties will share responsibility for the total payment and if Truck Leasing Limited is convicted after its trial and the sentencing judge agrees to its 25 per cent proportion of responsibility, will repay the others.
In a statement following sentencing, Auckland Council chief executive Stephen Town said they continued to extend sympathies to Jane's family.
"First and foremost, our thoughts today go out to Jane's family and friends. Throughout this ordeal they have shown incredible strength in such tragic circumstances and we hope they can now begin to move forward and start rebuilding their lives," he said,
"Our thoughts are also with the driver and his family."
Town said council took health and safety very seriously and had reviewed its processes to ensure its contract management includes oversight of the maintenance of trucks used to collect rubbish and recycling. This includes periodic audits of contractors' maintenance plans.
"As a council, our work is not over. While we have already made significant changes in the wake of this tragedy, we will continue to monitor our processes to ensure they are the best they can be so that an avoidable accident involving one of our staff or contractors never happens again."
The legal action came after Devonshire's family called for council to be held responsible and for barriers, fences or a roading mirror to be erected so no one else's life is cut short by a similar tragedy.
Shortly after the tragedy, Jane Devonshire's father, Philip Devonshire, said: "Too young, far too young. She was a fun-loving, outgoing person... They need to do something about it. We need to know something will be done about it. This can't happen again."
A spokesman for Veolia said they were "deeply saddened" by Devonshire's death and their thoughts were with her family. They are also supporting the driver.
Following internal investigations following the crash, Veolia has improved its vehicle maintenance schedules and processes, increased safety training, improved safety awareness on steep hills, ensuring suppliers complied with its safety measures and expectations and changed the suppliers of its specialised truck fleet.
"These changes demonstrate our commitment to the community, to our customers and our employees to act in a safe and responsible manner, but more so, to prevent accidents such as the one that claimed Jane's life."
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