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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Crime and punishment

What are the options for overcoming our apparent legal impotence in the face of large scale work-related tragedies like the CTV building collapse? JACKIE BROWN-HAYSOM investigates.

There’s a saying in legal circles that hard cases make bad law.

And cases don’t come much harder than the failure of Crown prosecutors to hold any individual, or organisation, truly responsible for the 29 preventable deaths at Pike River in 2010.

Or their reluctant decision not to prosecute for the alleged design failures that caused the deaths of 115 people when Christchurch’s CTV building collapsed in the 2011 earthquake.

With a lingering feeling in the public mind that justice has not been served, it’s probably no surprise that Minister of Justice Andrew Little has flagged the possibility of a corporate manslaughter law.

It’s not a new idea for Little – as an Opposition MP he drafted a private member’s bill in 2012 with the same objective, but it didn’t make the ballot.

And, in global terms, it’s certainly not an unexpected response, when existing laws have failed to provide meaningful redress in the wake of a high profile tragedy.

In Canada the 1992 Westray Mine explosion, which killed 26 and resulted in no successful prosecutions, prompted a 2004 amendment to the country’s Criminal Code. This amendment, still popularly known as the Westray Law, allows criminal negligence charges for causing death or injury to be laid against “anyone who undertakes, or has the authority, to direct how another person does work”.

In Britain the collapse of the case against those responsible for the 1987 sinking of the channel ferry Herald of Free Enterprise, in which 193 people died, set the scene for the Corporate Manslaughter and Corporate Homicide Act of 2008.

In Australia two deaths and eight serious injuries in the Esso Longford explosion of 1998 saw ACT add the new offence of industrial manslaughter to its Crimes Act in 2004; last year Queensland followed suit, 12 months after four people died on Dreamworld’s Thunder River Rapids ride.

CASE LAW TO DATE

With so many hard cases behind them, have these laws avoided the “bad law” trap?

It’s a big question, because those wanting to hold organisations criminally responsible for death or injury must first address a couple of intrinsic problems. First, there is the difficulty of attributing mens rea – the intention or knowledge of wrongdoing, without which there can be no crime – to a corporate body. The larger the organisation, the harder this becomes.

Second, there is the burden of proof. Criminal charges set the bar very high. Not only must a case be proven beyond reasonable doubt, but the behaviour that has given rise to the offence must be something considerably worse than mere carelessness.

Unfortunately there’s little in the overseas case law to date to suggest that any of the four jurisdictions has fully resolved both of these issues.

ACT has the biggest problem, with no successful prosecutions in 14 years.

Queensland, however, has already handed down a seven-year jail term to an electrical contractor who botched the electrics on a large job, ignored regulator directions to make the site safe and, after a young employee was electrocuted, retrospectively installed safety switches, and lied to investigators about when this had been done.

The penalty was stiffer than anything he’d have received under health and safety law, but as sole decision-maker in a small business, manslaughter charges could have laid without the law change.

The UK has in the last decade notched up 26 convictions under the CMCH Act. The act can only be used against organisations, but the vast bulk of cases have involved very small ones. Criminologist Professor Steve Tombs last year complained that only one of the convictions to date could not have been achieved under the old common law.

He went on to add that the stated rationale for the act – enabling medium and large companies to be convicted, by attributing the activities of senior staff to the organisation as a whole – has not yet been properly tested. Although there have been three acquittals, and a single case involving a larger corporation (CAV Aerospace, with 500 employees), the facts in these cases were such that the legal arguments were not fully aired.

There have also been relatively few trials, with around two-thirds of CMCH defendants pleading guilty, in part because of plea bargaining by directors, anxious to get their own gross negligence charges, which carry mandatory prison terms, dropped.

CANADA’S EXAMPLE

Canada’s track record is more problematic. In 14 years there have been 12 prosecutions, most of which have taken around four years to reach court (in one case, almost a decade), and only half of which have succeeded.

Although the Westray Law allows the collective failures of senior staff to be attributed to the organisation as a whole, most prosecutions have involved individuals. There have been cases involving large companies – a rail company in Quebec and a ferry operator in British Columbia – but the defendants in both cases were frontline workers, and when, in 2011, the United Steelworkers Union attempted to bring a private prosecution against forestry giant Weyerhaeuser for the death of a British Columbian mill worker, the Crown prosecutor issued a stay of proceedings.

Despite these problems, it’s the Canadian model that Little favours, suggesting that a similar amendment to our own Crimes Act would provide a “reasonably workable” framework to deal with corporations that kill.

The Independent Taskforce on Workplace Health and Safety quite liked the idea too. In its 2013 report it recommended extending the existing manslaughter offence to corporations, and mentioned the Canadian Criminal Code as a “useful model that might be considered”.

Taskforce member and H&S consultant Mike Cosman says then-acting Minister of Labour Chris Finlayson specifically asked them to investigate the issue, in light of a recommendation from the Pike River Royal Commission that New Zealand should consider such a law.

Making organisations liable for manslaughter charges was, the Taskforce concluded, “the most effective way to maximise the denunciatory and deterrent effect of the criminal law in influencing the behaviour of corporations.” However a close look at Canadian and British case law convinced it that both legislative options were “disappointing” in practice.

New Zealand, the report said, could do better.

TWIN RECOMMENDATIONS

To this end the Taskforce recommended two things: allowing for “the attribution of criminal liability to a corporation as a result of the acts and omissions of a … range of officers and employees… acting within the scope of their authority”; and for the actions of multiple parties “of required seniority” to be aggregated.

“The second point – the idea of aggregation – is one I still think is worth pursuing,” Cosman says. “If you’ve got actions by more than one individual which, taken together, meet the threshold for gross negligence, that’s where an offence might come into play.”

However, he’s not convinced that a manslaughter law will make a big difference.

“I don’t think extending the offence of manslaughter, by whatever means, is actually going to change outcomes to any significant extent.

“We hear time after time, from grieving families and the wider public, that nobody has been held to account, and that’s a really hard one because, short of sticking somebody’s head on a spike outside the corporate office, I’m not sure they’re going to get the justice they’re looking for.”

He hopes debate around the law will raise the broader question of what we want the criminal justice system to deliver.

“Are we using the existing tools in the right way, at the right time, so as to maximise the likelihood of securing a conviction under the laws we already have?”

DUE DILIGENCE OPTION

One of the tools that could make a difference, he says, is the section of the HSW Act that imposes due diligence obligations on directors. He regards this aspect of the new law as one of the Taskforce’s more significant recommendations, pointing out that a change of attitude in the boardroom can drive behaviour change throughout the organisation. He’s concerned, however, that WorkSafe may not be giving this area the attention it deserves.

“I think due diligence should be a standard part of any investigation of a work-related death – as much as pedestrian walkways and speed limit signs and high viz jackets.

“It needs reinforcing because otherwise, with so many things to focus on, boards will start to diminish the amount of time they spend on health and safety.”

Ideally, he says, WorkSafe would have a specially trained team – the H&S equivalent of the serious fraud squad – that it can call on to investigate governance issues.

“The investigatory skills required to determine whether a director has met their duties are very different from those associated with identifying whether a machine is properly guarded or proper traffic management is in place.

“But if a fatality occurs and no one even bothers look at the board minutes, directors will start to think it’s actually a bit of a damp squib.”

Conviction of a corporate officer under the HSW Act would have a significant impact across the whole community of directors, Cosman says, but even without a suitable case, “simply being seen to ask the tough questions” will help keep top decision makers accountable.

“If the regulator is seen to be knowledgeable and effective in that space, it might take five years for the right case to come up, but in the intervening period people will feel that the duty is real and meaningful, and the regulator will build its capability so when the big event occurs it’s skilled and ready to respond.”

It’s a fair point. The biggest determinant of workplace behaviour is usually company culture. Certainly anyone can, and will, make mistakes from time to time, but sustained carelessness – or negligence to give it its legal name – is not likely to occur unless the organisational culture tolerates it. But because it’s hard to prove that the CEO and board turn a blind eye if someone forgets their hard hat, criminal charges of the sort envisaged by the Minister are only likely to stick if they’re laid against those with hands-on responsibilities.

MAKING A DIFFERENCE

But will an offence of corporate manslaughter make our workplaces safer? There’s little in the overseas evidence to suggest it will. Last year a Canadian truck driver and his boss were both prosecuted for fabricating log books and driving excessive hours, after a fatal accident when the driver apparently fell asleep at the wheel. However the fact that neither party was convicted of manslaughter, and in the end the only conviction was a (vicarious) dangerous driving charge for the employer, is likely to have watered down any deterrent effect across the wider industry.

Of course public perceptions of justice are important too, and the fact that, under ACC laws, New Zealanders cannot seek redress by bringing actions for personal injury makes us a special case. And while it’s hard to find fault with Justice Woodhouse’s firm, if somewhat revolutionary, belief that actions for personal injury were a lottery with very expensive tickets and odds only slightly better than Powerball, it does leave a big gap.

That said, a new law that – despite the best intentions – is most likely to target the relatively vulnerable, and leave the powerful unscathed, will do nothing to fill it.

Bereaved families deserve their day in court. So too do those named in the media as the alleged perpetrators of public tragedy, at least some of whom may have strong cases to argue.

Under the present system both parties fail to get that chance far too often – not just under New Zealand law but also in those jurisdictions with laws specifically intended to hold people to account in such circumstances.

The HSW Act was crafted in the shadow of Pike River. Everyone involved in its design wanted a law that would raise the bar high enough to prevent such a tragedy recurring, and provide a suite of suitable prosecution options to ensure that organisations and individuals who failed to meet its duties would receive punishments that truly fitted the crime.

We have a sound and versatile law, but for whatever reason – under-resourcing of the WorkSafe inspectorate, cautious prosecutors, poor communication channels between Police and the regulator, the absence of any sentencing guidelines from higher courts – it’s yet to really bite. Before we look at a law change, let’s give it some teeth. As Pike River has proved, hard cases can make good law. Let’s use it!

How best to hold senior people to account for gross H&S negligence? Give us your feedback!

Key points

  • • 
    The Government is looking at some form of corporate manslaughter law.
  • • 
    The UK, Canada, Queensland and ACT have all introduced similar law in recent years.
  • • 
    Most cases to date could have been taken under existing law.
  • • 
    Few have been taken against large organisations.
  • • 
    Could be better to focus on HSW Act’s director’s due diligence obligations.

JACKIE BROWN-HAYSOM

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