BusinessJuly 31, 2019

Revealed: the regulatory hole that sees fatal truck crashes escape investigation


Authorities are failing to probe the root causes of truck accidents despite a rise in crash fatalities, writes business editor Maria Slade.

Police did not have the authority to investigate possible health and safety causes of commercial truck crashes for two-and-a-half years thanks to a hole in the regulations.

From April 2016 to October 2018, as the road toll spiked, the police Commercial Vehicle Safety Team (CVST) did not investigate any transport operators for ‘upstream’ health and safety breaches that may have lead to serious road accidents and fatalities.

This included a horror smash on the Desert Road at Easter last year which killed two young children. The truck driver who rear-ended their family car had worked over his hours for three out of four days prior to the tragedy.

At the same time the annual death toll from crashes involving heavy motor vehicles jumped sharply, from 58 in 2015 to 82 in 2017. It dipped again in 2018, but at 72 it remains well above the toll for every other year since 2008.

Information released to The Spinoff under the Official Information Act shows that the CVST was sidelined when new health and safety legislation came into force in April 2016. Under the old law the safety team’s staff were designated as inspectors. But when the new Health and Safety at Work Act came in they had no delegated authority.

It wasn’t until a Memorandum of Understanding (MoU) with government regulator WorkSafe was signed in October 2018 that police staff were able to start doing a limited number of health and safety crash investigations again. Since October the CVST has spent just 40 hours investigating four incidents.

Heavy vehicles are over-represented in serious crashes due to their sheer size, according to the Ministry of Transport’s latest truck crash fact sheet.

“Deaths from crashes involving trucks make up around 20% of the total road toll, while just over 6% of the total distance travelled on New Zealand roads is by trucks,” it said.

Trucking industry advocate Peter Gallagher said investigations into what role operators play in these deadly smashes are falling through the cracks between agencies.

Gallagher runs Prodrive, a body that supports contract truck drivers. He and Simpson Grierson lawyer Ben Upton have fought dozens of cases on behalf of truckies who are dependant on an employer despite their supposed contract status. Health and safety issues such as drivers being forced to speed and work excessive hours to meet deadlines are endemic, he said.

In 2012 the pair sought a meeting with the police’s Commercial Vehicle Investigation Unit (now the CVST).

“The question came up, ‘What do you do when you have fatalities, do you just look at the physical evidence or do you go off the roadside and go upstream?’

“They said, ‘No, we just look at the physical evidence, we don’t have the funding to go upstream’.”

Gallagher is “gutted” that nothing appears to have changed.

“Regardless of a new act, supposedly under the auspices of a new regulator, everything just got parked for three years at a time when trucking-related deaths were going through the roof.

“It is exactly as we’ve suspected, which is every bastard standing on the sideline hand-wringing without the guts or bloody funding to go in and do anything about it.”

Neither Police nor WorkSafe would be interviewed for this story, and both agencies put The Spinoff’s inquiries through the lengthy Official Information Act process. In a follow-up query we asked WorkSafe if it had used the Health and Safety at Work Act to prosecute any transport operators over truck crashes. WorkSafe said The Spinoff would have to make another OIA request. We are currently awaiting that response.

Dynes Transport driver John Barber had worked unlawful hours for three out of four days before he caused the crash which killed four-year-old Arteen Mosaferi and his two-month-old brother Radeen.

On Good Friday 2018 Barber was driving a Kenworth truck and trailer unit on the Desert Road south of Turangi. In front of him the children’s father Sia Mosaferi was driving the family Toyota while their mother, Mohy Sharifi, dozed in the passenger seat.

A truck in front of the Toyota braked as the line of traffic slowed, and Sia Mosaferi also braked, preparing to stop. Despite the fine afternoon and straight stretch of road, Barber failed to slow. He collided with the rear of the Mosaferis’ car, shunting it into the back of the other truck and another vehicle. Arteen died at the scene. Radeen died two days later in Starship Hospital.

Sia Mosaferi and Mohy Sharifi were both injured, and Sharifi has been left with a serious brain condition which prevents her from working. But the emotional wounds are the worst. “I have no difficulty in accepting that the deaths of Arteen and Radeen have left a gaping hole in their parents’ hearts,” Judge Maree MacKenzie said at Barber’s sentencing.

Police investigated the crash under the Land Transport Act. They found that on the day of the accident Barber had started work in Pokeno at 6.17am and driven continuously for seven hours and 10 minutes. A driver is only allowed to work for five and a half hours before taking a mandatory 30-minute break. Barber had falsified his logbook to show that he had started at Pokeno at 8.30am.

The day before he had driven from Wellington to Auckland. Drivers are required to have a minimum of 10 hours’ continuous rest in a 24-hour period, but Barber had only been off the road for 8 hours and 25 minutes before starting work again.

Two days earlier the 71-year-old had also driven from Wellington to Auckland, taking a break between shifts of less than 8 hours.

Barber pleaded guilty to two counts of careless driving causing death, two of careless driving causing injury, and four logbook offences – three of breaching rest time requirements and one of falsifying the log. He was sentenced to community detention, community work, disqualified from driving for 12 months and required to pay $5000 to the family for emotional harm.

This was no momentary lapse, Judge MacKenzie said. “This is a situation where Mr Barber consciously took a risk that he ought not have by failing to take the required rest periods in the lead up to the collision.”

Why Barber was apparently in the habit of taking this kind of gamble remains an unanswered question. Police were not able to investigate further because the CVST were not appointed as Health and Safety at Work Act inspectors at the time.

The New Zealand Transport Agency (NZTA), which regulates the trucking sector, said via a spokesperson that it is not investigating Dunedin-based Dynes Transport in relation to the crash, but has provided information to WorkSafe.

A spokesperson for WorkSafe said it has completed an investigation into the incident and will not be taking further action against any parties involved.

In a statement Dynes managing director Peter Dynes said the company was charged with allowing Barber to operate in breach of his log book hours.

“It is unknown why the driver had exceeded his work hours in the days preceding this accident. As the sentencing notes of Judge Brandts-Giesen state, this breach was not something known to, sanctioned by, or for the benefit of the company,” he said.

It’s not the first time a Dynes driver has been caught falsifying a log book. In 2015 a milk tanker driver was prosecuted after rolling his vehicle on the Takaka Hill and spilling 19,000 litres of cream. Dynes was also fined for operating an unsafe vehicle.

Police prosecutor Simon Heeley told the court that the driver had raised it with his supervisor that he was having problems completing all his tasks within the legal limit of 13 hours for driving a shift.

“He was told if he didn’t want to do it they would find someone else who would,” Heeley said.

Truckies doing the grueling Auckland to Christchurch run use the inter-island ferry crossing as part of their 10-hour ‘break’, a driver says. (Photo: Getty.)

Truck driver Andrew* knows all about fatigue. The owner-operator was almost pushed to financial ruin after the company he was working for objected to him pulling over and resting on the grueling Auckland to Christchurch run.

The inter-island ferry is a bit of a saving grace on that haul, he said. “What guys normally do is knock off their log book when they get to the boat, and basically try to take their 10-hour break including the ferry crossing. Then they have a few more hours after when they get across to Picton to rest up and then make the trip down to Christchurch.”

But Andrew was a newbie and hadn’t yet trained his body to “act like a robot”.

“You’re trying to sleep during the day, and you can appreciate during the summer you’re trying to sleep in your truck, and you hardly get any sleep at all.

“So, I was sort of ridiculed a couple of times for pulling over and having a sleep because I was tired. I think it was the third or fourth time I did it I was hauled into the offices [to go] though a disciplinary hearing.”

Even though he was an independent contractor who had never missed a payment on his truck the company tried to foreclose on his $450,000 loan. It was retaliation, he said.

He now works for another firm which operates within the rules.

Yet the statutory 30-minute break every five-and-a-half hours is an absolute minimum, Andrew said.

“You’re driving a 50-tonne unit, you’ve got other users on the road. You run the risk of killing someone, and yourself.

“If you identify the fatigue signs you need to pull over, and even if it’s closing your eyes for half an hour it helps.”

Work by AUT researcher Dr Clare Tedestedt George has made many in the sector sit up. Her PhD thesis painted a picture of an industry in a race to the bottom, and was the first study to look at the structural factors underlying the poor practices.

“Why are truck drivers so fatigued, why are they speeding?” she asks. “No logical person would drive when they’re that exhausted, so what’s the decision-making process behind these dangerous acts?”

One of the challenges is that the trucking industry crosses disciplines from employment relations to road safety, and no one agency oversees the complex sector, she said.

The government is currently consulting on its new road safety strategy. Its Road to Zero consultation document cites Tedestedt George’s research, saying it highlights “the way in which tight margins and business structures in the freight sector can cause drivers to make unsafe choices to meet deadlines and remain price competitive”.

The strategy recommends “examining the roles and powers of regulators and ensuring effective coordination between NZTA and WorkSafe, including examining the boundary between their roles”.

Nick Leggett, chief executive of industry body the Road Transport Forum, was surprised to hear that the CVST has done only 40 hours of investigation into upstream causes of truck crashes since April 2016.

Regulatory oversight is a key part of making sure firms operate safely, “so to hear that it may not have been working as it should would be of deep concern to us.

“Our view would be there needs to be an urgent centralisation of information and investigation into these sort of incidents.”

He notes that the management and operations of NZTA have been “chaotic now for a period”. Leggett is no doubt referring to the regulator’s backlog of 850 cases of alleged rule-breaking. That backlog has now been cleared with around 300 actions over non-compliance taken, said Kane Patena, NZTA’s GM regulatory.

Before the end of its last financial year the agency also pushed through another 2000 non-compliance cases. It is now doing its job in proactively monitoring the industry, he said. “The agency has been pretty upfront that we weren’t regulating in the way we should in the past.”

One of its priorities this year is to beef up its intelligence and risk capability, he said.

There is an overlap between Police, WorkSafe and NZTA in terms of broader safety issues, Patena said. But he is comfortable that NZTA’s role is clear. “We are the land transport regulator. We decide who gets the licence to operate. Once we give them the licence to operate we have the obligation and responsibility to continuously monitor the performance of those people. If they fall below the standard we can take them out of the system.”

In a joint statement to The Spinoff, Police and WorkSafe said the Memorandum of Understanding between them outlines that police have primary responsibility for the investigation of any fatal on-road incident.

“In addition, under the MoU, officers from the New Zealand Police’s Commercial Vehicle Safety Team are trained, assessed, and appointed as inspectors under the Health and Safety at Work Act 2015. They have a broad range of tools to improve safety outcomes in the heavy transport sector.

“Under the MoU, if a police investigation finds issues that should better be handled by WorkSafe under the Health and Safety at Work Act, Police will refer the matters to WorkSafe.”

*Name has been changed.

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