By George Block of 
The bus crash on Ohakune Mountain Road in July 2018. Photo: RNZ / Gia Garrick
A ski field operator has been convicted after admitting endangering the lives of workers and passengers five years on from a bus crash that killed an 11-year-old schoolgirl on Mt Ruapehu.
But Ruapehu Alpine Lifts (RAL) has avoided a $250,000 fine because the liquidator of the embattled company said it has no ability to pay.
RAL was operating the shuttle bus that crashed beneath Tūroa ski field on Ohakune Mountain Road on 28 July, 2018, fatally injuring Auckland girl Hannah Francis and seriously injuring many of the 30 others on board, including the driver.
The bus lost control while travelling down from the ski field.
A coronial inquest found the gear the driver was using was too high for the steep road and conditions, and he failed to shift into a lower gear and thereby slow the bus via engine braking before taking a hairpin bend. When he applied the brakes, they overheated and failed.
The charges brought by health and safety regulator WorkSafe after the inquest relate to failures by RAL to adequately train and supervise its drivers, as well as maintenance failures.
RAL, represented by Christchurch lawyer Garth Gallaway, appeared for sentencing in the Waitākere District Court on Wednesday afternoon before Judge Maria Pecotic.
More than a dozen people injured in the crash were in court to see the company sentenced and hear victim impact statements. RAL chief executive Jonathan Dean was in the public gallery, along with a liquidator of the beleaguered company, which is now in liquidation but is still trading.
Hannah's mother Michelle Bruton described the trauma her daughter's death and the years of official inquires and media attention had wrought on her family.
She and her husband had separated amid the grief. Bruton still barely slept.
"The worst was having to tell her sister," she said.
"I told her ever so gently that Hannah has died and she'd gone to heaven."
Her sister had suffered from trauma and separation problems, Bruton said.
"She was five years old, and because of someone else's negligence, she had her whole life ripped apart."
Bruton described having to say goodbye to her daughter as Hannah lay in her coffin.
"She didn't look peaceful, she looked like a child that had been horribly injured and hurt beyond belief," she said.
"Inside I'm dying quietly, just wanting my Hannah back."
She said her daughter was a gifted and talented girl who loved drawing and wanted to grow up to be an architect or designer.
"Hannah had so much potential, so much life left to give… this was taken from her in a blink of an eye by someone's actions."
A woman in her 20s who survived the crash, and was granted name suppression at her request, described the nine seconds on the out-of-control bus and the chaotic aftermath as the worst experience of her life.
"People were screaming, crying and saying their goodbyes to each other," she said.
"I told my partner I loved him and held his hand."
When the bus rolled, she was knocked out. She woke up, screamed her partner's name, and to her relief, he called back.
"It was a horrific scene of injured people splayed on the roadside," she said.
No charges were laid by police or WorkSafe at the time of crash, but a coroner's inquest in 2021 found the bus' brakes used an air-over-hydraulic brake system that was old technology and the driver made critical errors that led to the brakes failing.
Coroner Brigitte Windley's findings restarted the limitation period in which WorkSafe can lay charges after the original timeframe for doing so had lapsed.
The woman said her trauma had been compounded by what she described as WorkSafe's "significantly delayed investigation" and the "painfully drawn-out process".
She attended every day of the coroner's inquest into Hannah's death to try to obtain closure, she said.
Like other survivors, whose statements were read by a police officer in court, the woman described suffering post-traumatic stress disorder after the crash and a new fear of ski fields, snowboarding and skiing.
RAL was charged with failing to ensure the safety of passengers on the Mitsubishi Fuso bus that day and exposing Hannah and other passengers to risk of death or serious injury.
It was also charged with failing to ensure the safety of its workers and exposing them to the same risks on the buses it used to transport skiers up and down the mountain road. The charges carry a maximum penalty of $1.5 million.
RAL went into voluntary administration last year and had attempted to delay the prosecution until liquidators could report back on its financial situation.
But the attempt failed and the company admitted two charges brought by WorkSafe under the Health and Safety at Work Act 2015, entering guilty pleas in the Taihape District Court in April.
The charges were laid against RAL in May last year, and a judge initially entered a not guilty plea on behalf of RAL in August because of continued adjournment requests.
Rachael Woods, the lawyer representing WorkSafe, said maintenance failures meant the bus was in an unroadworthy state for two years before the crash.
This was an aggravating factor in addition to the training and supervision failures acknowledged by the company as the primary cause of the crash, Woods said.
Woods said the parlous financial state of RAL meant WorkSafe acknowledged there was no realistic prospect of a fine being paid. But she said a starting point should be set nonetheless.
Gallaway said RAL was remorseful, apologised unreservedly to the victims and acknowledged the training deficiencies and its failure to monitor the driver, who habitually drove the treacherous Ohakune Mountain Road in third gear.
He sought the full 25 percent discount available for the guilty plea and said the company had no issue with the reparations sought by WorkSafe on behalf of the victims, a total of $420,000, which would be covered by insurance.
Gallaway, like the victims, was critical of WorkSafe's delay in launching an investigation.
"In my submission, WorkSafe completely failed in its obligations to these victims," he said.
"It should have investigated at the time."
He said where a fine cannot realistically be paid, the court had a choice to impose a fine regardless, or not impose the fine at all - and suggested the judge adopt the latter approach.
Judge Pecotic said she acknowledged the trauma and devastation still felt by the victims of the crash.
The judge adopted a starting point of a fine of $500,000, discounted by 25 percent for the guilty plea, 5 percent for its co-operation with authorities, 5 percent for remorse and 10 percent for the fact it had agreed to pay the significant reparation sum.
Further discounts of 5 percent for previous good character and 5 percent for other factors reduced the final fine to $250,000.
An affidavit from the liquidator said the company had no ability to pay. As a result, Judge Pecotic did not impose a fine but did enter a conviction.
"In my view, it is not in the interests of justice to impose a penalty in this case," Judge Pecotic said.
Speaking outside the Waitakere District Court, a visibly emotional RAL chief executive Jonathan Dean said the company accepted the sentence and apologised to the victims for the harm it had caused.
"No sentence will ever account for the pain and suffering that they have experienced," he said.
He said the company would keep advocating alongside Hannah's family for mandatory seat belts on buses.
Inquest findings
In her findings, Coroner Brigitte Windley called for passenger seatbelts on buses and emergency run-off lanes to be investigated after Hannah's death.
She found the bus driver made two critical mistakes leading to the crash.
Terry Choi was driving the 1994 Mitsubishi Fuso with an unforgiving braking system reliant on extremely careful driving, Coroner Windley said.
An examination of the bus found no mechanical faults that caused the brakes to fail.
The way Choi, a father himself who was so remorseful he did not seek name suppression, drove the bus was the main cause of the brake failure and crash, Coroner Windley said.
"Mr Choi had made two critical mistakes."
He used third gear when driving down the steep upper reaches of Ohakune Mountain Road with a fully loaded bus.
Coroner Windley said that put the brakes at risk of irrecoverable failure.
"Mr Choi's second critical mistake was in failing to change down from third gear to second gear, as he said he usually did, before the hairpins."
She also found the bus had an air-over-hydraulic brake system considered old technology by today's standards.
"Brake fade can set in rapidly, and where overheating occurs to the point of failure, there is little, if anything, the driver can do to rapidly recover braking function."
- This story was originally published by the New Zealand Herald.
