Pyramid Trucking Limited v Police
[2017] NZHC 613
•31 March 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2016-419-000062 [2017] NZHC 613
BETWEEN PYRAMID TRUCKING LIMITED
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 23 March 2017 Appearances:
S Khan for Appellant
T A Needham for RespondentJudgment:
31 March 2017
JUDGMENT OF LANG J [on appeal against conviction]
This judgment was delivered by me on 31 March 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
PYRAMID TRUCKING LIMITED v NEW ZEALAND POLICE [2017] NZHC 613 [31 March 2017]
[1] Pyramid Trucking Limited (Pyramid) was issued with and elected to defend infringement notices alleging that it had operated a truck and two trailers that exceeded their permitted maximum weight limits in several respects.
[2] The charges were public welfare regulatory offences in respect of which the prosecution was not required to prove that Pyramid intended to commit the offences. Instead, the onus was on Pyramid to establish on the balance of probabilities that it was not at fault in relation to the circumstances that gave rise to the offending. This type of defence is sometimes referred to as a “total absence of fault” defence.1
[3] In a decision delivered following a defended hearing on 27 December 2016, Judge Harding rejected Pyramid’s defence.2 The Judge found each of the charges proved and entered convictions accordingly. Pyramid appeals against conviction on the ground that the Judge erred in rejecting its defence.
The offending
[4] Pyramid is a transport company that operates primarily in the Waikato and Bay of Plenty regions. The charges related to a truck that Pyramid used for the transportation of bone and meat meal from a meat processing factory near Te Aroha to the Port of Tauranga. The truck carried the meal in containers loaded onto two trailers in a configuration known as a B train.
[5] Pyramid held an overweight permit that permitted the truck and trailers to carry a total gross mass weight of 61,000 kilograms. The permit also specified the maximum weights permitted in respect of each of the configuration’s ten axles, as well as the maximum permitted weights for specified groups of axles within the configuration.
[6] On 17 March 2016, police officers attached to the Commercial Vehicle
Investigations Unit stopped the truck at a weigh pit near Te Poi, to the south of
Matamata. When the axles of the truck and trailers were weighed, they were found
1 Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) at 82; Hooked on Rigging Ltd v
New Zealand Police HC Wellington AP76/02, 9 September 2002 at [12].
2 New Zealand Police v Pyramid Trucking Ltd [2016] NZDC 19125.
to exceed their permitted weights in three different respects. First, there was a breach of the overall mass permit. The total gross weight of the truck and trailers was found to be 61,650 kilograms when the maximum permitted weight was 61,000 kilograms. The police apply a tolerance of 500 kilograms in respect of the total gross weight. The truck and trailers therefore exceeded the tolerated weight by 150 kilograms.
[7] Secondly, axle 7 weighed 6,820 kilograms when it was only permitted to weigh 6,200 kilograms. The tolerance for a single axle is also 500 kilograms, meaning that axle 7 was 120 kilograms above the tolerated weight.
[8] Thirdly, axle group 5 to 10 was found to weigh 38,430 kilograms when it was permitted to weigh a total of 36,000 kilograms. Allowing for a tolerance of 1,000 kilograms, this group of axles was therefore 1,430 kilograms in excess of the tolerated weight.
The defence case
[9] Pyramid called one witness in its defence. This was Ms Jodine Chappell, Pyramid’s compliance manager whose role is to ensure that Pyramid complies with the statutory and regulatory regimes to which it is subject. Ms Chappell said that the containers in question had been loaded onto the trailers at the meat processing factory operated by Wallace Corporation Limited near Waitoa. They were to be transported to the Port of Tauranga to be shipped overseas.
[10] Ms Chappell said that Pyramid has three trucks, each of which makes three to four trips every day from the Wallace Corporation factory to the Port of Tauranga. The containers are loaded with bulk meat and bone meal by Wallace Corporation employees and then weighed on the deck of a truck at the Wallace Corporation weighbridge. Pyramid has a member of its staff permanently based at Wallace Corporation’s premises. That person is present when containers are loaded, and is responsible for ensuring that the meal is distributed appropriately within the containers. The containers are then sealed and set aside for collection by Pyramid’s trucks.
[11] When one of Pyramid’s trucks arrives, the driver is provided with a despatch note in respect of each container loaded on the truck. This gives the driver the weight of each container. That information is also contained on a Carter’s Note, or consignment note, that the driver receives from Wallace Corporation and hands over when the containers are delivered to the Port of Tauranga.
[12] In the present case the consignment notes showed that one container weighed
22,420 kilograms, whilst the other container weighed 22,480. The driver is aware of the tare weight of the truck and trailers from registration stickers issued by the New Zealand Transport Agency (NZTA) and displayed on each vehicle. The driver uses the consignment notes and the tare weights of the truck and trailers to calculate whether the vehicles are within permitted weight limits.
[13] The tare weights shown on the NZTA stickers displayed on the truck and trailers in question totalled 15,360 kilograms.3 As a result, the driver would have been under the impression that the total gross weight of the truck and trailers would have been approximately 60,260 kilograms. This was 1,390 kilograms less than was found to be the case when the police weighed the truck and trailers at the weigh pit.
[14] Ms Chappell explained that it was impractical for each of Pyramid’s trucks to be weighed before it leaves the Wallace Corporation premises. That would require each vehicle to stand in line for the weighbridge for an hour or more on each occasion. Pyramid therefore chooses to rely upon the accuracy of the weighing procedure carried out by Wallace Corporation. During the hearing it produced a certificate of accuracy showing that the scales operated by Wallace Corporation had a certificate of accuracy that was valid from 4 February 2016 until 4 February 2017.
[15] In addition, the staff member based at Wallace Corporation’s factory supervises what Ms Chappell described as “dummy runs”. This is in effect a sampling exercise that requires three or four of Pyramid’s trucks to be weighed on an axle by axle basis at the Wallace Corporation weighbridge each week. These
exercises are designed to ensure that the weights provided to Pyramid’s drivers on
3 In cross-examination Ms Chappell agreed with a suggestion that the total tare weight of the truck and trailers was 15,640 kilograms but this appears to have been a mistake on the part of the police prosecutor.
the Wallace Corporation documentation match the weights produced by the Wallace
Corporation weighbridge.
[16] Ms Chappell said that, immediately after the police had weighed the truck and trailers on 17 March 2016, Pyramid’s driver arranged for them to be weighed at a weighbridge operated by J Swap and Co Limited (Swaps), a transport firm in Matamata. Swaps’ weighbridge recorded the truck and one trailer as weighing
42,920 kilograms and the second trailer as weighing 17,820 kilograms. If Swaps’
scales are correct, the total gross weight of the truck and trailers was therefore
60,740 kilograms. This was 500 kilograms more than the calculation that would have been made by Pyramid’s driver, but it was still less than the maximum permitted weight. Ms Chappell also produced a certificate of accuracy in respect of Swaps’ scales that related to the period between 6 August 2015 and 6 August 2016.
[17] Pyramid defended the charge on the basis that it was entitled to rely upon the accuracy of the scales operated by Wallace Corporation, particularly when Pyramid tested this several times every week by means of the so-called dummy runs.
The Judge’s decision
[18] The Judge’s reasons for rejecting Pyramid’s defence are encapsulated in the following paragraphs of his decision:
[9] The company is entitled to adopt the approach which it has. It is difficult to say that it is unreasonable. They have a constant product loaded in supervised conditions weighed on certified scales, placed on trucks with tare weight and that they have systems to check that three or four times a week with particular loads to avoid the necessity of checking each load.
[10] Such a process is arguably a reasonable business process but it is not the taking of all possible steps and a total avoidance of fault.
[11] It is possible if commercially not sensible for the company to weigh each truck on a gross basis after loading. It does not do so. It is possible at the exit point, namely Wallaces, to weigh each truck axle by axle but it does not do so. The impracticability of doing that on a constant basis up to 12 or
15 times a day has to be recognised but the reality is that the company is operating trucks loaded deliberately to very close to the maximum possible allowance and electing to ensure compliance by means of calculation and generality rather than testing of specifics. It is entitled to do that but it is not in achieving that demonstrating a total absence of fault. At the very least one
might expect the gross mass of the loaded trucks to be checked as they left leaving the individual axle weights to be calculated but that is not done.
Conclusion – Result
[12] In the circumstances even on balance I am unable to conclude that Pyramid Trucking has a total absence of fault despite reasonably robust systems and in the absence of a total absence of fault the infringement notices are [sic].
The test
[19] The majority judgment in Civil Aviation Department v MacKenzie4 stated that a defendant in this type of case “must prove that he did what a reasonable man would have done”.5 A few sentences later, however, the majority went on to say that “a no-fault defence allows the defendant the opportunity of exonerating himself by proving that he exercised all reasonable care.”6
[20] Several recent judgments of this Court have grappled with the issue of the manner in which the test must be applied. In King v South Waikato District Council Brewer J warned against adopting a standard of care akin to negligence.7 He observed:
[20] Strict liability is not the same thing as negligence. There is a temptation to move towards the negligence level of liability whenever the word “reasonable” is used. It should be remembered that this is not the sense in which it is used in this case. Total absence of fault is a high threshold to cross. Here, for example, there was evidence before the District Court Judge from which it can be inferred that the respondent Council would have taken more care in looking at the Te Whatas, their history of dog ownership and how they intended to deal with Jimbo.
[21] Brown J referred to the approach taken in King with approval in Fairbrother v Porirua City Council.8 Brown J said that it was not useful to attempt to re- formulate the test by asking what more a reasonable person could have done or showing that all reasonable steps were taken to prevent the offence from being
committed.
4 Civil Aviation Department v MacKenzie, above n 1, at 85.
5 At 85.
6 At 85.
7 King v South Waikato District Council [2013] NZHC 596.
8 Fairbrother v Porirua District Council [2015] NZHC 1452.
[22] An example of a more liberal approach being taken can be found in Hooked on Rigging Ltd v New Zealand Police.9 In that case the appellant, a transporter of heavy machinery, obtained an overweight permit to transport a 39.2 tonne bulldozer from Napier to Wellington. When the police stopped and weighed the vehicle en route, they discovered that two of the axles exceeded their maximum permissible weight limit.
[23] The appellant gave evidence that it had taken two steps before leaving Napier to ensure that it complied with the permit weight. First, it used a recognised formula to calculate the weight distributed over each of the seven axles from the weights of the tractor unit, trailer and bulldozer. Secondly, it had weighed two groups of axles on a public weighbridge before leaving Napier. This confirmed that the two groups, comprising four axles, were within the permitted axle weight. Wild J considered that these steps were sufficient to establish an absence of fault defence. He rejected further steps that counsel for the prosecution submitted the appellant could have taken. These included weighing all seven axles individually before the truck left Napier in order to ensure that none was over its permitted weight. Wild J considered that “the steps taken by the appellant to ensure compliance with the permit were
diligent and socially responsible, and were without fault on its part”.10
Decision
[24] It is implicit from the Judge’s remarks that he had considerable sympathy with the position in which Pyramid finds itself. Pyramid must balance the need to conduct a commercially viable operation against the need to comply with a strict regulatory regime designed to ensure that overloaded vehicles are not permitted on the nation’s highways.
[25] Furthermore, it is not possible to reconcile the differing results produced by the three sets of scales that were used in the present case. This aspect of the evidence clearly demonstrates that the fact that scales are certified as being accurate will not necessarily ensure consistent results in respect of separate measurements of
the same object. For that reason transport operators need to take particular care
9 Hooked on Rigging Ltd v New Zealand Police, above n 1.
10 At [23].
when they rely on the accuracy of scales operated by third parties to ensure compliance with weight limits.
[26] As the Judge observed, several factors suggest that Pyramid acted reasonably in the steps that it took. First, the driver of the truck was in possession of documentation issued by Wallace Corporation confirming that, when the weight of the load was added to the known tare weights of the vehicles, the gross weight of the truck and trailers was 740 kilograms less than the permitted limit and 1240 kilograms less than the tolerated limit. This provided a margin, albeit slender, to allow for factors such as the weight of the driver and other incidental items that might have been placed on board the truck and trailers.
[27] Although the containers were loaded by Wallace Corporation staff, that occurred under the supervision of the Pyramid employee based at the Wallace Corporation site. Furthermore, although the containers were weighed by Wallace Corporation and not by Pyramid, nevertheless Wallace Corporation held current certificates of accuracy in respect of its scales. In addition, Pyramid’s staff member used the dummy run system to check the accuracy of the weights produced by the Wallace Corporation scales and to ensure that the loads did not result in the vehicles exceeding permitted limits on an axle by axle basis.
[28] Ms Chappell also confirmed that the tare weight of the truck was calculated when it had a full fuel tank, and that neither of the trailers had a tool box affixed that might have added to their tare weights. As a result, the tare weights of the truck and trailers were unlikely to vary to any significant degree.
[29] Pyramid has elected to carry loads that are close to the maximum permissible under its permit. However, it is entitled to do so provided it can establish it has taken all reasonable steps to ensure that its vehicles are not heavier than the maximum permitted weight. Furthermore, there is no evidence to suggest that Pyramid knew or ought to have been aware that there may have been any problem with the accuracy of the scales at the Wallace Corporation weighbridge as at 17 March 2016.
[30] Ultimately, however, the issue is whether the procedures that Pyramid adopted were sufficient to provide it with a defence. Those procedures obviously needed to be very robust given the fact that Pyramid knew that the vehicles would be carrying loads very close to the permitted weight.
[31] The MacKenzie test does not require a defendant to have taken all possible steps to ensure the offending does not occur. As the cases to which I have referred demonstrate, nor is it sufficient for the defendant to take reasonable steps to that end. Rather, it must take all reasonable steps to ensure the offending does not occur.
[32] Judge Harding was obviously alert to this distinction. He observed that it was not sufficient for Pyramid to take reasonable steps to ensure its vehicles do not exceed their permitted limits. Rather, it was required to take all reasonable steps to ensure that does not occur.11 The Judge found that the steps taken by Pyramid were reasonable, but this was not sufficient to satisfy the test.
[33] Pyramid’s procedures ultimately relied for their integrity on the sampling exercises undertaken through the so-called dummy runs. These do not appear to have been carried out in a particularly structured way. Rather, Pyramid appears to have selected three or four trucks to be weighed each week at random. As a result, some trucks might not be weighed at all during the course of a week whilst others might be weighed twice. On some days no trucks might be weighed, whilst on others several trucks might be weighed. Further, there is no evidence that Pyramid kept records of these exercises so it had no means of proving they had been undertaken.
[34] I do not consider that unstructured and sporadic exercises such as these were sufficient to absolve Pyramid from responsibility once the system was shown to have failed. I therefore agree with the Judge’s conclusion that Pyramid could not show it took all reasonable steps to avoid the vehicles being over their permitted limits.
[35] Ms Needham for the respondent correctly submitted that Pyramid could have insisted that each of its trucks be weighed at the Wallace Corporation weighbridge
before leaving the premises on an axle by axle basis. As the Judge acknowledged, however, the Wallace Corporation weighbridge is a busy place and the evidence established that trucks could easily be delayed by an hour or more on each trip if they were to be weighed on an axle by axle basis. I consider that the weighing of every truck on an axle by axle basis would amount to the taking of all possible steps to ensure the vehicles did not exceed permitted limits, and that sets too high a standard. The standard that it must meet is therefore lower than a requirement to weigh every truck on an axle by axle basis, but significantly higher than the sampling exercise that it currently undertakes.
[36] The Judge suggested that it might be sufficient for Pyramid to ensure that the gross weight of each truck was ascertained before it left the Wallace Corporation site.12 That is obviously a helpful start, but it does not provide any safeguard in respect of the weights on individual axles and groups of axles.
[37] For what it is worth, and it may not be much, I consider that as a minimum standard Pyramid would need to weigh each truck on an axle by axle basis before it left the Wallace Corporation site with the first load of the day. A record would need to be kept of the results of that exercise. Documentation carried on subsequent journeys using the same configuration and the same type of load would obviously need to show that the gross weight of the load was within the tolerated limit having regard to the tare weights of the vehicles in the configuration.
[38] A sampling exercise of that type may be sufficient to amount to the taking of all reasonable steps in the event that a load of the same goods carried by the same configuration later in the day was found to be slightly in excess of tolerated limits. In the present case such a system might have provided a defence in respect of the charges relating to Axle 7 and to the total gross weight of the configuration.
[39] The system would not provide a defence, however, where the vehicles were found later in the day to be significantly in excess of tolerated limits. In that event Pyramid would be at fault because the staff member responsible for supervising the loading of the containers would have failed to ensure they were loaded in an
appropriate manner. For that reason the system I have suggested may not have provided a defence in respect of the charge relating to axles 5 to 10.
[40] If Pyramid does not find this type of procedure to its liking it may need to reduce the quantities of meal that are loaded into the containers by a significant margin. That is probably the only other way in which Pyramid can realistically guard against the possibility that the scales used by Wallace Corporation do not produce the same results as those obtained at a police weigh pit.
Result
[41] The appeal against conviction is dismissed.
Lang J
Solicitors:
Crown Solicitor, Hamilton