Angela is the Editor for Safeguard magazine. In previous lives she spent 10 years with the Northern Advocate and then another ten with the NZ Herald.

4 Responses

  1. Mike Cosman
    Mike Cosman at | | Reply

    I think the issue here is one of how to better engage directors and investors in issues of operational risk management. The Securities Commission has a code and we are now seeing action being taken in relation to finance company failures. There is nothing similar in relation to health and safety despite similar codes involving the IoD in the UK having been around for many years.

    Evidence from Pike -which I suspect mirrors the vast majority of corporates in NZ, was that the Board took a relatively hands off approach to safety. “No one told me there was a problem so how was I to know?”. This is unacceptable if we are to move from a situation of ‘assumption’ to one of ‘assurance’.

    Corporate manslaughter legislation is largely symbolic -what we need is some visible indication that future enquiries -not just into major disasters like Pike, will involve hard questions being asked of those who make the big investment and strategy decisions about how they ensured they were properly informed about the management of current and future safety risks and how these were factored into their thinking.

    Consideration of gross negligence manslaughter by the Police as a routine part of fatal acccident investigations would be a start. They do this on the road so why not at work?

    I hope there won’t be any knee jerk reactions to Pike -but a good public debate on how to address the appalling work toll -through multiple means, would be a start.
    Perhaps Brookers could organise a conference on this theme to get the ball rolling?

    1. Peter Bateman
      Peter Bateman at | | Reply

      Regarding the police investigating fatal accidents (and considering manslaughter charges if appropriate), that would require resolution of a jurisdictional issue between the police and the Dept of Labour. I understand that the police are not usually involved in workplace fatalities, which are left to the DoL to investigate. The exception is when a fatality occurs on the roads and the police investigation leads them to believe there is a work-related cause involved (eg: truck driver doing excessive hours), when they might refer it to the DoL. However I can recall one case which saw both the DoL and then the police lay charges. In 1998 a drainage worker employed by David Spencer Ltd was killed. In 1999 the company, which had a single hands-on owner, David Spencer, was convicted and fined under the HSE Act. Shortly afterwards the police charged Spencer manslaughter. The case was eventually thrown out on appeal. An interesting discussion on the case, and the legal arguments about double jeopardy, can be found on page 30-32 of a university dissertation here: http://www.otago.ac.nz/law/oylr/2006/ASweet_Diss_06.pdf

  2. Susan Dugdale
    Susan Dugdale at | | Reply

    Rob Ord, (Barrister & Solicitor), Nelson, submitted the comment below, via our Feedback email address. It is posted with his permission.

    “Of course we need a corporate manslaughter law. And we need “capital punishment” for those “persons” convicted as well – the company among other things can be struck off!”

  3. Mark
    Mark at | | Reply

    I disagree that “In New Zealand a company cannot be charged with homicide, only a person can be”. A person includes a company. I think what you mean is that homicide can only be committed by a human being, based on the NZ case of Murray Wright (1970). Although, arguably a person (ie company) can be a party to a homicide. The NZ Murray Wright case (1970) concluded that manslaughter could only be done by a human being. The court stated: “Manslaughter is culpable homicide. Homicide is the killing of one human being by another. No act or omission of a company which causes death can itself amount to manslaughter, because the act or omission which kills must ex hypothesi be the act or omission of a human being.” However, Turner J in the UK Criminal Court decision of R v P & O European Ferries (Dover) Ltd (1990), comprehensively reviewed the authorities in the United Kingdom and some other jurisdictions (including Murray Wright in New Zealand) and concluded that an indictment for manslaughter could lie against a corporation. Developments in UK case law would suggest a company could be charged with homicide. Since that case, the UK codified the law due to a difficulty in identifying an individual who is the embodiment of the company and who is culpable. See Wong article for a good read on the subject: http://www.nzlii.org/nz/journals/CanterLawRw/2006/6.html#Heading1. Be interesting to see if the Wellington Council are potentially liable for the spate of bus accidents (and deaths) under the HSE Act or Crimes Act (or both) . It would certainly make for a topical article.

Leave a Reply