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Alert24 - Safeguard Update

Judge slams NZDF failures

Judge slams NZDF failures
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New Zealand

The New Zealand Defence Force has been slated for "systemic failure", including poor maintenance of safety equipment, poor training, and failure to follow prescribed safety procedures, following the death of a serviceman who fell from a boat during a training exercise at Waiouru.

In sentencing, Judge Stephen O'Driscoll said that while no fine was payable because the defendant is a Crown entity, and no reparations order was sought in light of the $240,000 already paid to the man's family, it was appropriate to comment on the force's culpability.

"I am left with the inescapable conclusion ... that the culpability of NZDF is at the high level on the scale," he said. "Employers must ensure that the safety of their employees ... is their paramount consideration [and] should not wait until a tragedy occurs to review processes and procedures."

Private Michael Ross died in September 2012 when he fell into icy water from an under-inflated Zodiac while returning from a training exercise at Lake Moawhango in the Waiouru Military Area. His personal flotation device (PFD) did not inflate because the gas canister was empty, and he was not able to manually inflate it. With more than 20kg of equipment on him, he sank before he could be rescued. Colleagues who tried to assist could not dive deep enough to reach him because of the very cold water. Divers recovered his body a week later.

The judge rejected the defendant's argument that a finding on culpability was only warranted if a fine was to be imposed, noting instead that such a finding was central to a judge's role in any hearing, and there was nothing in OHS statute or case law to prevent him doing so. "I do not think immunity from paying a fine equates with NZDF having an immunity from scrutiny for their breach of the HSE Act."

Using the sentencing guidelines established by the High Court in Hanham & Philp, he found the Defence Force had failed in every area.
In terms of its obligations to take all practicable steps it had:

  • failed to identify the water temperature as a hazard;
  • treated the retrieval of troops as an administrative rather than a tactical manoeuvre;
  • failed to ensure that the victim's machine gun was secured to the boat in accordance with safety protocols;
  • failed to provide a safety briefing for some of those involved in the operation;
  • failed to provide adequate training in the use of the personal flotation devices;
  • failed to ensure that staff were competent to check that the PFDs - on loan from the navy - were operational;
  • failed to inspect the Zodiacs to ensure they were fully inflated;
  • failed to ensure the crewmen operating them had been trained to recognise and manage the hazards of under-inflation;
  • failed to ensure the rescue boat's outboard motor was fitted with a propeller guard (which may have been a factor in Ross releasing a rescue line as he drifted close to the propeller);
  • failed to prevent Ross riding on the bow of the Zodiac; and
  • failed to ensure that the safety boat was fit for purpose, manned by at least three people, equipped with sufficient communication devices, and immediately able to perform a rescue.

In addition the judge found that the nature of the hazard - drowning - was both obvious and extremely serious, while the difficulties of functioning in the cold water had been observed by a safety officer the previous day, and the hazard posed by the under-inflated Zodiac had been obvious to some of the soldiers boarding it.

Avoiding the hazard would have been relatively simple, he said. The NZDF had adequate resources but lacked implementation processes. In particular, only two out of 15 engineers were available to check the Zodiacs before the operation, and no one on staff had been trained to inspect and service the PFDs. "Identifying the empty canister is a task that every engineer involved in the exercise should have been familiar with."

The current state of knowledge about the risks associated with lake crossings and the means available to address them were well established, he said, and the operation in which the incident occurred did not include any new or unfamiliar aspects.

"There was a high degree of departure from the army's written policies [in that] some soldiers were not provided with a safety briefing, the Zodiac was operated under-inflated and in dangerous proximity to other vessels, [and] safety instructions about securing weapons ... were not enforced and possibly not explained."

The operation of the safety boat was also in breach of required standards in that it had only a single person on board, did not have the necessary life saving equipment, and was not idling its motor during a man overboard event.

"The operative omissions ... encompass a wide spectrum of areas [and] paint a picture of systemic failure by the defendant. The NZDF had all the required knowledge and expertise to identify these failures before the accident [but] failed to do so in much more than one single way."



Organisations Mentioned:
NZ Defence Force
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From Alert24 - Safeguard Update

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