WorkSafe’s decision to drop further charges against former Pike River Coal chief executive Peter Whittall has been upheld, after facing a legal challenge from Anna Osborne and Sonya Rockhouse, who lost a husband and a son respectively in the 2010 Pike River disaster.
Osborne and Rockhouse’s application for a judicial review was dismissed by Justice Brendan Brown.
They had questioned the legality of WorkSafe, which had previously found that it was not in the public interest to pursue charges against Whittall, and consequently decided not to offer evidence against him.
WorkSafe’s choice influenced a 2013 ruling by Judge Jane Farish of the District Court to dismiss all charges against Whittall, which was challenged by Osborne and Rockhouse.
Other parties had previously been charged with health and safety offences that contributed to the explosion that claimed 29 lives.
Those charged included VLI Drilling, which was fined $46,800, and Pike River Coal, which was fined $760,000 and ordered to pay $3.41 million in reparations to the families of those killed and two miners who survived.
Evidence considered as a part of Osborne and Rockhouse’s appeal included correspondence that showed the $3.41 million voluntary payment was proposed by Whittall’s lawyer, and was conditional on the charges against him being dropped.
As a part of the arrangement, Whittall had a private meeting with the families and survivors of the tragedy to “convey his personal empathy and condolences”.
The alternative was costly court proceedings, which would result in the families of those involved being left worse off financially.
In the correspondence – which was originally between Stuart Grieve QC (Whittall’s lawyer) and the Crown solicitor for Canterbury and Westland – the offer was described as “economically viable only if Mr Whittall's continuing preparation costs can be terminated promptly”.
He also noted that the most Whittall could be charged with was a fine, that he was a secondary party to the offending of Pike River Coal which had already been convicted with record fines and reparation, and that the Royal Commission had already completed a comprehensive report on the Pike River Coal Mine Tragedy.
A 2013 confirmation of the agreement from Keith Stewart – the Worksafe health and safety inspector who had filed the original charges against the company and Whittall – said that although there was sufficient evidence to justify a prosecution, the likelihood of success was low because of the unavailability of key witnesses, briefs that were likely to be inadmissible, the potential for a battle by each side’s expert witnesses, and the prospect of lengthy and complex pre-trial arguments.
Stewart also noted that the most Whittall could be charged with at the time was a fine.
Justice Brown’s decision showed that WorkSafe officials had considered consulting the families of the victims on Whittall’s proposal, but this was ultimately deemed too difficult.
Osborne and Rockhouse’s lawyers argued that WorkSafe had opted not to call evidence as “the result of an agreement which it made with Mr Whittall to drop all charges in return for a payment of $3.41 million to be made by an insurer”, an allegation denied by the government body.
Since the Pike River Mine tragedy, there has been intensifying debate around the introduction of a
corporate manslaughter clause into New Zealand’s workplace health and safety legislation, which is yet to take effect.
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