Company ordered to pay $658,000 in fines and reparation after fatal crash

Susan Joyce Walmsley, 64, died in 2020 after a three-vehicle collision on the Tauranga Eastern Link. Photo / Supplied

The company responsible for causing a fertiliser "white-out" that resulted in a fatal crash on the Tauranga Eastern Link (TEL) has been ordered to pay more than $658,000.

Susan Walmsley, 64, was travelling towards Tauranga on the TEL just before 7am on February 5, 2020, when she collided with the rear of another vehicle and a third vehicle drove into the back of hers.

She never regained consciousness and died in Tauranga Hospital on February 8.
The Pyes Pā School deputy principal was survived by her husband Roy and two adult children Niall and Gabby.

The incident was caused after lime dust, which was being spread out on a Pahtuna dairy farm by Wealleans Bay of Plenty Ltd, blew across the highway.

Another driver involved in the crash described the visibility as a "complete white-out".

Wealleans was sentenced in the Tauranga District Court yesterday after earlier being convicted of a charge of failing to ensure, where reasonably practicable, that other persons were not put at risk from the work it carried out.

Wealleans was convicted of the WorkSafe charge by Judge Paul Mabey QC following a judge-alone trial in May.

The judge's trial decision said WorkSafe submitted the company failed to undertake an "effective risk assessment" including the risk of "product drift" onto neighbouring properties or roads that day, especially given the forecast wind was from the southwest towards the motorway.

The maximum penalty for the offence is a fine of $1.5 million.

At the start of yesterday's sentencing hearing, Judge Mabey told WorkSafe's solicitor Karina Sagaga that he had read "every word of the victim impact statements" which made "sad reading".

Sagaga argued a sentence start point of a $650,000 fine was appropriate given it was a "high culpability" offence.

She said a weather forecast was not undertaken by the defendant on the day of the crash and if it had been, the fertiliser spreading would not have taken place.

Sagaga also argued a "fair and reasonable" reparation figure was a total of $250,000 for all four victims, with 80 per cent to be paid to the Walmsley family.

WorkSafe also sought a further $77,000 payment to Roy Walmsley, to meet the 20 per cent shortfall in ACC payments being made to him.

The defendant's lawyer Neil Beadle said the fine being sought by WorkSafe was "too high" given this was not a deliberate failure and the company had no prior convictions.

Beadle submitted a fine starting point of $450,000 and urged the judge to allow a 20 per cent discount for the defendant's co-operation with the investigation, remorse and previous good health and safety record.

"Yes, there was a breach here but not of the kind that deserves a high starting point," Beadle said.

He said the overall reparation figure sought by WorkSafe was also too high when compared to awards made in other similar previous cases.

Beadle said his client had employed a fulltime health and safety professional, which showed how committed the company was to its health and safety obligations.

Judge Mabey said he did not blame the truck driver, this was "an executive decision" by head office, and clearly, the truck should never have been started up or loaded.

Judge Paul Mabey QC. Photo / Andrew Warner

"I think you are shooting too high Ms Sagaga with your culpability band ... This was a departure from industry standards but it wasn't a flagrant or deliberate disregard of the weather forecast," he said.

He described Wealleans as an "industry leader" in terms of its prior record of health and safety at work.

Judge Mabey said he agreed with Beadle that the starting point should be $450,000 and allowed a 20 per cent discount for the factors raised in mitigation, reaching a fine of $360,000.

Wealleans Bay of Plenty Ltd was also ordered to pay $150,000 emotional harm reparation to the Walmsley family and $30,000 each to the other two drivers in the crash, plus another $88,649 in consequential loss reparations, of which $60,000 must be paid to the deceased's husband to cover his ACC shortfall.

The judge suppressed the names of the other two victims in the collision, as per WorkSafe's request, and said he would release his full written decision in due course.

In a written statement provided after the sentencing, WorkSafe area investigation manager Paul West said it was a "preventable tragedy".

The statement claimed Walmsley's vehicle was engulfed by the fertiliser cloud and struck from behind.

"Mrs Walmsley was a treasured wife and mother, as well as a beloved teacher, and our thoughts are with all those who continue to mourn her loss. This was a preventable tragedy, and more should have been done to account for the risk to road users," West said.

"It's only by luck that there were no further fatalities on the motorway that day. Although the circumstances are uniquely sad, this incident could have happened anywhere in the country so the agriculture sector more widely should take notice.

"All industry guidance makes clear that there is a risk of wind drift.

"Agricultural lime is a dusty product that can cause a reduction in visibility, depending on how it is handled or local weather conditions. "This risk should be assessed before use, including the impact on operators, farmers, nearby moving vehicles, and the public."

A Wealleans company director declined to speak when approached outside court.