HUGH DE LACY reviews the aftermath of a series of multi-fatality workplace disasters, including Pike River, and asks if there’s one rule for private company liability and another for Crown?
Kill eight people in an overloaded fishing boat, or seven in a canyoning disaster, and the full weight of the law comes down on you – at least if you’re a private citizen or organisation.
But kill 29 people in a badly regulated coalmine or 17 students on a badly built viewing platform and you get away scot-free – possibly because you’re a government department.
That’s the conclusion that might be drawn from the performance record of the Health and Safety in Employment (HSE) Act and its administrator, formerly the Department of Labour (now the Ministry of Business Innovation and Employment) in the wake of a succession of multi-fatality tragedies since the legislation was introduced in 1992.
Excluding the Canterbury earthquakes and four aviation cases, there were four accidents involving seven or more deaths in the Act’s first decade, of which two resulted in prosecutions of the private entities allegedly responsible.
Government departments were heavily implicated in the other two but no one was prosecuted.
The four were:
- The Cave Creek disaster of April 28, 1995, when 13 Aoraki Polytechnic students and a teacher died following the collapse of a viewing platform in Paparoa National Park.
- The Tongariro tragedy of April 15, 2008, when six students and a teacher from the Elim Christian College in Auckland died in a flash flood in the Mangatapopo Gorge while on a course at the Edmund Hillary Outdoor Pursuits Centre in the central North Island.
- The Pike River coalmine disaster of November 19, 2010, in which 29 miners and contracters were killed in methane explosions in the Brunner seam near Greymouth.
- The Foveaux Strait tragedy of March 14, 2012, when an overloaded fishing boat flipped and sank, taking eight people with it, while on its way from Bluff to the mutton-bird islands.
Following the Tongariro disaster, the MBIE laid two charges against the Outdoor Pursuits Centre, essentially for failing to ensure the student party’s safety while in its care by not using the freely available meteorological information which would have warned of a likely flash flood in the gorge.
The centre pleaded guilty and was fined $480,000, with the judge saying the penalty would have been higher had the centre not been a charitable trust.
The victims’ families would each be awarded $60,000 of the fine, and the four surviving students $5000 each.
In the Foveaux Strait case, both the company that owned the boat, Az1 Enterprises Ltd, and its sole director, Bluff woman Gloria Davis, face three charges under the HSE Act and two more under the Maritime Transport Act.
Davis was due in court on January 25 this year, and two of the charges she faces carry prison terms.
By contrast, no one has been held accountable for either the Cave Creek or Pike River disasters, though Conservation Minister Denis Marshall resigned a year after the Cave Creek tragedy, and Labour Minister Kate Wilkinson soon after Pike River.
The absence of accountability otherwise was despite commissions of inquiry finding the Department of Conservation had acted illegally and negligently in the Cave Creek case – it had built the viewing platform without a building consent – and MBIE failed in its duties under the HSE Act at Pike River by providing an inadequate mines inspectorate.
Last December 12 charges that the MBIE had brought against the manager of the Pike River mine, Peter Whittall, were dropped, because they were deemed unlikely to succeed.
A proviso of the dropping of the charges was that the $3.41 million in compensation earlier awarded to the victims’ families by the Greymouth District Court against Pike River Coal Ltd, despite it being in receivership and unable to pay, would instead be paid by the insurance companies funding Whittall’s defence.
The victims’ families have reacted to the payout, presently under way, by calling it blood money to prevent Whittall, and ultimately Pike River Coal’s directors and shareholders, from being held accountable.
The families have since vowed to take a criminal prosecution against Whittall and the Pike River directors, and it may be that the aftermath of the Tongariro canyon tragedy may provide them with some sort of precedent.
In the Tongariro case, the judge said the tragedy could have been avoided had the Outdoor Pursuits Centre simply checked the weather forecast.
The MetService provided no fewer than four warnings that day of the thunderstorms about to turn the Mangatepopo Stream into the torrent that carried away the six students and their teacher, but the Outdoor Pursuits Centre hadn’t even bothered to sign up to receive them.
This was despite an Australian student at the centre being killed in an identical situation in 2000, and the centre’s parlous record of having had three other fatalities and seven near-misses in its 40-year history.
The case appeared to turn on the failure of the centre to use the freely available MetService information, and as such it may well have set a legal precedent, if it didn’t already exist, that is relevant to Pike River.
The core conclusion of the commission of inquiry into Pike River was that the MBIE had failed to implement the HSE in relation to mining, and that the coal company’s directors had acted improperly over health and safety standards.
Whittall, the company itself and one of the contractors, Valley Longwall International, were all charged, but not the directors – nor MBIE.
Valley Longwall, which lost three employers in the disaster, pleaded guilty to three charges under the HSE and was fined $46,800.
The awards levied against the company were tokens since it was already in receivership, and those against Whittall were withdrawn.
But if the Outdoor Pursuits Centre could be successfully prosecuted for not using the safety information available to it, why not Whittall and the Pike River directors?
Whittall, an Australian, had personal experience of the effective health and safety procedures applied in the Queensland coalmines because he worked in them before moving to New Zealand and Pike River.
Yet he, no less than his directors, who had ready access to professional advice, failed to apply effective health and safety regimes to Pike River simply because the MBIE didn’t oblige them to.
It will be for the victims’ families and their high-powered lawyers, now funded by the $3.4m being stumped up by Whittall’s and Pike River’s insurers, to see whether the precedent set by the conviction of the Outdoor Pursuits Centre can provide some sort of a basis for a suit against Whittall and the Pike River directors.
Such a suit would, of course, still have to navigate its way round the Accident Compensation Corporation (ACC) legislation and its suspension on its formation in 1974 of the common law right to sue for damages over such accidents.
The other lesson from the multi-fatality accidents that have occurred since the introduction of the HSE Act relates to the Government’s refusal to meet public demands to pay the $3.4 million awarded against Pike River Coal by the Greymouth District Court because, it said, that would set a precedent.
In fact such a precedent exists: In the aftermath of the Cave Creek viewing platform tragedy, which occurred just up the road from Pike River, the Government paid out $2.6 million to victims’ families.
This point is now moot, given the insurers’ agreement to pay the $3.4 million awarded against Pike River as a proviso of the charges against Whittall being dropped, but it refutes the Government’s assertion that doing so itself would set a dangerous precedent.
Overall it’s hard to escape the conclusion that when Government agencies stuff up they’re not held accountable, but private citizens and agencies are – sometimes.