Forest owner held accountable for not consulting on the safety of a road

Late last year in the District Court in Thames, a forest owner and a trucking operator were convicted under the Health and Safety at Work Act 2015 in relation to a logging truck crash. The nine axle HPMV truck, weighing 47.8 tonnes, failed to negotiate a tight bend on a steep downgrade and rolled over, killing the driver. The case revolved around the condition of the road, although the actual charge was about a failure to consult a third party on that condition.

There were a number of interesting things about this case:

• All the discussion about culpability around consulting related to the infrastructure, and not about procedures (other than consultation), working hours, or the characteristics of the truck or driver.
• The road was a private road. As a private road, in essence, it was treated just like any other potentially dangerous asset that the forest company owned.
• It was very steep, (nearly 20%) downhill, and included a very sharp bend described as an “arrowpoint”.
• There were no warning signs for the grade or curve. The accident happened at night.
• The change in vehicle gross mass limits making 50 Max HP MV trucks near universal especially in the logging industry, had turned what might have been an acceptable road under the old weight limits of 44 tonnes into one that could not cope with the higher weight

The status of the road being a private road, and not a public road, appears to have exposed its owner to this action. In that respect it was reminiscent of an earlier case called Berryman in which a contractor fell through a bridge on a private road. Had it been a public road, the case around its failure would have been unlikely to have even been brought, let alone result in a conviction. And on a public road, the driver is responsible for his or her own safety and that of others.

Instances of inadequate design or maintenance are not uncommon on public roads but there have been no prosecutions under the HSWA for road owners like NZTA. Coroners dealing with these cases have simply only been able to exhort road owners to improve safety of roads in cases like rockfalls or inadequate signage

There is no explicit exemption for road owners under the HSWA. Roads are “structures” and people who design and maintain structures have duties under section 39. The analogous railway is clearly covered by the act and KiwiRail has been prosecuted a number of times for rail infrastructure issues.

Why then are public roads different? Historically roads had an exemption from being sued for failure to do something (“non-feasance”) but not for doing something badly (“misfeasance”.) This was known as the “highway rule”. The privately owned Southern Railway in 1930s Britain tried to claim the exemption for one of its access roads, but failed.

These cases had their roots in the unincorporated nature of counties in the eighteenth century and earlier, and the consequent difficulty of naming who to sue there. Trying to sue “the men of Devon” failed in a 1788 case. But despite this narrow background, the rule developed a life of its own and the specific circumstances of its roots were forgotten.

Despite the words to the contrary of one English Judge, it does seem as if the law did have a “special tenderness” for roading, and still has. The rule still applies in New Zealand but with the ACC legislation it is of minor consequence. It was also concerned with civil liability (negligence), and not statutory liabilities and offences. It could be however that roading inherited the sympathetic view and it carried over into other spheres like HSWA, and the absence of strict obligations on NZTA to operate safe roads. Or it could be a deeper issue like roading authorities being at arm’s length from the users and accidents, unlike in the JSWA cases.

Other jurisdictions have thrown out the “highway rule” and replaced it with a legislative obligation for the roading authority to run a safe highway system.

We already have such a piece of legislation for the railways, so why not roads?