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Safeguard Magazine

Legal viewpoint—Public injuries, private prosecution

A woman seriously injured after slipping in a public space launched a private prosecution after discovering she was one of many who had been similarly injured over the years. VICTORIA CASEY reports.

I represented Katherine Casey (my sister) in a private prosecution against the University of Otago. In 2013 Katherine slipped on the internal tiled flooring of the Commerce building atrium and suffered serious injuries. On 31 August this year, the University pleaded guilty to a charge under section 49 of the HSE Act (failing to take action in the knowledge that this was likely to cause serious harm) and was sentenced to pay reparation of $60,000.

The University also committed to removing or covering all the tiles in the atrium. (The University was exempt from any fine under s 8 of the Crown Organisation (Criminal Liability) Act 2002.)

This was not a case of strict liability. Accidents happen and people slip and fall, and sometimes suffer serious injuries. What lay behind this prosecution was something different: information disclosed by the University under the Official Information Act showed a startlingly long series of incidents, serious injuries and formal complaints since the building was first constructed in the 1990s.

It also showed that while the University had from time to time attempted to fix the hazard, it had also been aware that those efforts were ineffectual, and had held back from taking the appropriate remedial steps for reasons which were themselves concerning. According to the documents disclosed by the University, these appear to have included concerns with the appearance of the tiles and ease of cleaning (if they were properly coated with an anti-slip surface), or the cost of bringing the building up to current fire safety standards if more extensive renovations were undertaken.

We could see from the documents that if the University had done the right thing at any stage over the last 20 years, Katherine would not have been injured. This was not an accident.

WHY SECTION 49?

While Katherine was at the University in the course of her employment (her employer being in a commercial relationship with the University), we elected to bring the charge under s 49 alone, without reference to any particular duty under Part 2 of the Act. Katherine provided evidence as the latest victim, but her particular injury was not part of the charge.

This reflected the overall approach we took to the prosecution. We kept this simple, with the focus on the University’s systemic failure. It was only happenstance that Katherine was the one injured. Others had been injured before, and if nothing was done others would be injured in the future. The core issue was that the University had allowed itself to drift along in an institutional non-response to a known hazard, letting others carry the risk.

This was the culpable misconduct, and s 49 matched it precisely. We were also aware that if the Court took a different view, s 49(4) allowed a conviction to be entered under s 50 in any event.

This also reflected our goal in bringing the prosecution following MBIE’s decision not to investigate. We wanted the University to take responsibility and to fix the problem permanently. Katherine was not prepared to walk away until that happened, knowing that others continued to face the same risk that had resulted in permanent injury for her.

We assessed that simplicity and a clear focus on the true nature of the culpable misconduct would be the strongest approach. In accordance with s 26 of the Criminal Procedure Act 2011 the Judge “called in” all the prosecution evidence before accepting the private charging document for filing. On 10 February 2015 the Court directed that the evidence was sufficient to justify a trial on the s 49 charge.

There do not seem to be many cases that focus only on long-term systemic failures, and in this context there may be important lessons. Two stand out.

“WE’VE BEEN WORKING ON THE PROBLEM …”

I have seen commentary on the new legislation suggesting that if organisations can show that they are working towards meeting their obligations, they may escape liability even if they have not yet attained that goal. This advice appears to be sensible, so far as it goes, but it also comes with risks. Organisations need to be sure that they are actually and demonstrably working towards meeting their obligations, at a speed and with a level of effort commensurate with the prospect of harm to individuals.

Internal communications and planning documents that acknowledge current shortcomings have a very limited shelf life; there is a point where they change from being helpful illustrations of good faith into very unhelpful admissions of knowing about ongoing failure to take adequate steps to avoid harm. In other words, it is vitally important to avoid the trap of repeating cycles of internal reports without concrete action.

JUST DO THE RIGHT THING

We were disappointed and honestly surprised to reach the point of a conviction in this prosecution. Our initial hope was that no prosecution would be necessary, that Katherine’s injury would be enough to make the University realise that it needed to fix the problem properly. That didn’t happen. What we saw was what the documents disclosed had happened in response to earlier injuries: low-budget temporary “fixes” that would leave the core hazard unchanged.

When the prosecution was filed and the full scope of the evidence disclosed to the University we hoped its leadership would act. Even if they were not inclined to fix the building because it was simply the right thing to do, they might act to avoid a conviction and the associated negative publicity and adverse impact on the University’s relationship with its insurers and ACC.

The University eventually decided to take this course of action, but at a very late stage.

The end result was that the University was convicted, was ordered to pay reparation, has committed to a major renovation project to fix the building, and has faced the negative publicity it deserved for knowingly risking serious harm to its students, staff and visitors over an extended period of time.

What it still hasn’t done is offer a genuine apology and acknowledgement of responsibility to Katherine1. If it had started with that step, and followed it up with fixing the hazard, the rest could have been avoided.

Victoria Casey is a barrister at Thomas More Chambers in Wellington.

Footnotes

  1. *Victoria Casey is a barrister at Thomas More Chambers in Wellington.
  2. 1In February 2014, eight months after her injury, the Vice Chancellor wrote to Katherine to express regret for her injuries, and to advise Katherine that the University was committed to health and safety. The VC said that the University had over the years undertaken “significant and quite regular improvement work” on the building since its construction, “so I am very sorry that your accident was still able to occur.”
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