CTV Building: Why no one is being prosecuted under current law for the collapseby Rebecca Macfie
The decision not to pursue charges against the two men police wanted to prosecute in connection with the collapse of the CTV building has stung those bereaved by the catastrophe.
As recently as May, Christchurch police were hopeful of achieving justice for the families of the dead and recommended that engineers Alan Reay and David Harding be charged with manslaughter. They reached the conclusion that there was enough evidence to prosecute after three years of exhaustive inquiry by a dedicated team of detectives, forensic analysis by the engineering firm Beca and expert peer reviews. It was the biggest investigation ever undertaken by the Christchurch police.
But they were strongly advised not to lay the charges. Crown Law –the Government’s legal advisors – thought the case would probably fail in court because it would be difficult to prove that the two men had been grossly negligent, the threshold required to make the charges stick. In any event, wrote the author of the advice, Deputy Solicitor-General Brendan Horsley, the prosecution was almost certainly barred by an obscure clause in the statute, which could be read as meaning it was too late to bring charges. He added that a trial would be very long and expensive, and while cost was “not determinative”, it was “clearly relevant”.
The police team, led by Detective Superintendent Peter Read, questioned Crown Law’s reasoning when an earlier draft of the advice was received. But when Horsley’s final opinion was handed down to them on September 8, the message was firm: “We do not recommend prosecution in this instance.” For the avoidance of doubt, the words “do not recommend” were printed in bold type.
Theoretically, the decision on whether to prosecute lay solely with Read, but a legal opinion on Crown Law letterhead effectively represented the view of the Solicitor-General, Una Jagose. The unwritten words in the document were, “Be it on your head if it fails.” And so the case was over before it began.
It was exactly a week after the Supreme Court ruled that the 2013 decision to drop health and safety charges against the former boss of the catastrophically flawed Pike River mine was unlawful that the families of those killed by the catastrophically flawed CTV Building were finally told on November 30 there would be no accountability before the law for the deaths of their loved ones.
Maan Alkaisi, whose GP wife Maysoon Abbas was killed as she worked on the fifth floor of the building, heard the news while he was at a conference in Wellington, from a reporter who had rung to ask for his reaction.
Reaction to what? For three years, he had been kept regularly informed by the police of the progress of their investigation, but he knew nothing of the decision. He had missed a call from Read; an email had apparently been sent, but had gone astray.
“It is so devastating. I will not accept this decision,” he says. “I know what the facts are.”
For Alkaisi, hearing the news that no one would be brought to trial was “like opening the wound again, and this wound will not heal until justice is done”. He is taking legal advice on whether there are grounds to challenge the decision, and he and his daughter Marwa asked people to “stand in solidarity” at a protest on Sunday, December 10, at Christchurch’s Latimer Square, the green park opposite the CTV site where the wounded and dead were carried from the smouldering rubble.
Even the senior policemen who had to publicly explain the decision at a press conference on the afternoon of November 30 allowed their bitter frustration at the stillbirth of the prosecution to show. One of their own – police child protection officer Pam Brien – had died in the CTV Building.
“If I’d taken my heart’s advice, we would have prosecuted,” Read said. “But I can’t take my heart’s advice. I have to use my head.” He told the Listener that the team of detectives who had sweated over the case were “devastated” when the news was broken to them that the case was off. “There was just stunned silence.”
“We have anguished over this,” said Superintendent John Price, commander of the Canterbury police. “This is our town. This is our city.”
A city scarred
Almost seven years on from the shallow, magnitude 6.3 earthquake that struck at lunchtime on February 22, 2011, Christchurch remains scarred, and the collective experience of the bland downtown office block that fell like a pack of cards is the most agonising scar of all. Of the 185 people fatally injured in the earthquake, 115 were in the CTV Building. Of the 151 people inside at 12.51pm, only 36 got out alive, many of them bearing severe injuries. No other building failed in the way that one did.
Among the dead were doctors and patients, students and teachers, reporters and receptionists, mothers and fathers, sons and daughters. They were from China, Japan, the Philippines, Thailand, Taiwan, Korea, Turkey and Christchurch. In this small city, everyone knows someone who was directly affected by the trauma.
The police report includes a floor-by-floor tally of the death rate: on the fifth, where Abbas worked at The Clinic medical practice, 19 out of 21 people were killed; on the fourth, occupied by the language students and tutors of King’s Education, 79 of 94 died; on the second, the home of the local TV station that gave the building its name, all 16 people died. CTV receptionist Maryanne Jackson, the sole occupant of the ground floor, fled out the door to safety. One person out of the 19 on the top floor died – the survivors rode down with the building as the floors below collapsed on top of each other into a twisted mass of wreckage.
If there was anything to be thankful for, it was that the third floor was vacant. Otherwise the death toll would surely have been even higher.
In an extraordinarily rare move, the police have released hundreds of pages of documents relating to their criminal inquiry, including their investigation report, the Beca report, the two engineering peer reviews of Beca’s work, the advice of Christchurch Crown Solicitor Mark Zarifeh and the Crown Law opinion.
The documents show that the investigators looked closely at the role of a number of people in relation to the building’s collapse, before narrowing their focus to just Reay and Harding. The Christchurch City Council should not have given the building consent in 1986, but the council’s two senior building engineers (both now dead) were not culpable, they concluded. This decision was made despite the design’s being so patently flawed that one engineer, who reviewed the drawings for a potential buyer of the building in 1990, compared it to a car with three wheels: “For an experienced engineer, I’d say it’s pretty fundamental and obvious,” the witness, whose name is redacted from the investigation report, told police.
However, in terms of the standards of the day, the city council’s building consent staff were not expected to conduct detailed reviews of structural drawings and in any case they did not have time to. Rightly or wrongly (and other councils, such as Auckland, had more exacting processes), the council’s chief structural engineer, Bryan Bluck, had prepared guidelines for his staff telling them they were entitled to rely on the expertise of a designer who certified that his drawings complied with the building code.
In the case of this building, the consenting officer, Graeme Tapper, asked 13 written questions of Reay’s firm, including in relation to the connection of the floors to the shear wall system. However, the police report concludes that Tapper must have accepted the signature of Harding – who, as the 2012 Canterbury Earthquakes Royal Commission found, was a novice when it came to multi-storey design – as certification that it complied. The design flaws would have been obvious to an engineer experienced in multi-storey design, but Tapper’s experience was in civil work such as hydro dams.
The police also concluded, based on Beca’s advice, that defects in the building’s construction were not responsible for its collapse. The site was badly supervised, they found, and there was poor preparation of beam joints and a lack of spiral reinforcing of beam-column joints, but these factors “would not have significantly increased the propensity for sudden pancaking collapse”.
The investigation also dispelled another widely held suspicion: that the building collapsed because of damage sustained in the earthquakes of September 4 and December 26, 2010, and that the council was to blame for allowing it to be reoccupied. Beca’s advice was that it was unlikely that the earlier earthquakes had caused significant structural damage. Inspections after the 2010 quakes – including a highly praised one by engineer David Coatsworth – revealed no structural damage, and Beca’s modelling showed the performance of the building under the conditions of the February earthquake was not affected by the prior quakes.
Further, the police concluded, the forces unleashed by the February earthquake did not cause the building to collapse. Although it was a big quake, it was short enough to allow properly designed buildings to survive, because they had sufficient resilience to meet the seismic requirements of the code of the day. Beca’s modelling showed that if the CTV Building had complied with the minimum requirements of the code – which it did not – it would have stood up.
Having eliminated from their inquiries other people – deceased council consenting officers, construction managers, council building checkers – and the earthquake itself, the police homed in on Reay and Harding. Both men had legal duties under the Crimes Act as “persons in charge of dangerous things” – the dangerous thing in this case being a multi-storey building – and were obliged to take “reasonable precautions” and use “reasonable care”. They also had a duty to “avoid omissions dangerous to life”.
To succeed in a manslaughter case against Reay and Harding, the police would have had to prove that their conduct was a “major departure” from the standard of care expected of “reasonable and prudent” professionals under similar circumstances. The “major departure” test equates to gross negligence.
The police report, which also draws on the evidence put before the royal commission, spells out the facts relating to the design of the building.
It was conceived, in 1986, as a speculative development by the property company that owned the Madras St site. It was to be a “basic box” – six storeys, with maximum lettable space. The developer met with a building company executive over lunch one day, and the concept for the building was sketched on the back of a menu.
The small practice of Alan M Reay Consulting Engineer was asked to do the structural design. Reay had a PhD in civil engineering and a rising profile around town, but no experience in multi-storey design and no employees with significant multi-storey experience.
He had earlier employed an engineer named John Henry, who did have such experience, but Henry had completed the jobs he had been working on and resigned in 1985 after only a year with Reay’s firm, having had enough of working as a “backroom designer” without what he considered to be a safe and professional level of oversight from his employer.
Harding, who had worked for Reay before, was hired to replace Henry. He came from a job at a local council, where he designed such things as traffic roundabouts and a hydroslide at a community swimming complex.
Reay “assigned Harding the task of doing the whole design” of the six-storey Madras St building, according to the police report. He handed Harding the file of another building – designed by Henry – to use as a template.
Time sheets seized by police from Reay’s home and premises last year showed he had spent only three and a half hours on the project; Harding himself spent 300 hours on the design. Reay had earlier told the royal commission that the time sheets were an accurate reflection of his involvement with the job, and he confirmed that he did not check or review any of Harding’s structural details before the building permit was issued.
The design contract was for a fixed fee of $50,000, and was on a “no job, no pay” basis: that is, until the drawings had been granted a permit by the council, Reay’s firm would not be paid by the developer for any work. At the same time, the client was in a hurry to get the building under way.
Harding’s unchecked design contained significant errors, according to the police investigation report. Among them, the north wall complex – the part of the building that was supposedly designed to withstand seismic forces – was 25% weaker than required by the building code of the day, and the south wall was 40% weaker.
Beca identified 12 failings made by Harding in his design, including a significant mathematical error. “The resulting design of the building contained significant non-compliances with the codes of the day.”
Reay told the royal commission that he relied on the council to pick up any design defects at the consenting stage. But the police and Beca interviewed 28 engineers who were in practice at the time and concluded that it was not the accepted standard of the day to rely on council checks to pick up mistakes. “None of the … structural designers relied on the council to check their structural designs in lieu of any other structural reviews, either in-house or by another experienced designer if the respondent was part of a smaller firm or a sole practitioner,” said the report.
When an engineer from Holmes Consulting did a due-diligence review of the drawings in 1990 on behalf of a client who was thinking of buying the still-vacant building, he immediately discovered a glaring flaw: the floors were not properly connected to the north shear wall (a structural wall composed of braced panels to counter the effects of lateral load acting on a structure). The client decided not to buy the building, and the Holmes engineer notified Reay’s firm of what he had found and wrote a brief report for the client: “In the event of an earthquake, the building would essentially separate from the shear walls well before the shear walls reached their design strength.” In other words, it would fail.
The Holmes report was a major red flag, and an opportunity for Reay to revisit the work of his inexperienced former employee (Harding had left in 1988). But that didn’t happen. Reay asked Geoff Banks, an engineer who had joined the firm as a director, to design a solution. Banks designed retrofitted “drag bars” to tie the floors to the wall, but they were for the top three storeys only and did not meet the requirements of the code. No building consent was sought for the retrofit work, and the job wasn’t done for 21 months.
In any event, Beca concluded that the retrofit, even if it had been compliant, would not have saved the building from collapse in February 2011 because of other weaknesses in the design. After extensive analysis, testing and modelling, Beca concluded the collapse was triggered by the failure of one or more beam-column joints on the ground floor. Once they failed – either by being crushed or tipping to one side – the adjacent columns would have immediately become overloaded and also failed, “resulting in the pancaking collapse of one floor on top of another”. The south shear wall failed after the collapse of the floors.
“It is our opinion that, had the whole building complied with the codes and practices of the day, the building, though damaged, would have had sufficient resilience not to collapse suddenly and in a pancaking fashion,” the Beca report said.
Two unidentified peer reviewers looked at Beca’s work and largely agreed with it, albeit with some caveats. One, an American engineer, thought Beca had been too hard on Harding, noting that “the inexperienced engineer is rarely aware of what he or she doesn’t adequately know”. Crucially, he also thought it possible that the collapse could have happened in the absence of the design errors due to the “higher than expected ground motions in combination with the lack of resilience that this structure possessed”.
The second reviewer, an Auckland engineer, cautioned against relying too much on the findings produced by the computer analysis, which could be out by plus or minus 50%. And he thought Beca’s conclusion that the collapse was triggered by the non-compliant beam-column joints was a “limiting conclusion” that could give the impression that this was solely responsible. He thought failure was due to a combination of shortcomings in the building design, rather than just this one. The mistake in estimating the design loads on the south shear wall led to failure under the earthquake’s forces, with the building then “swinging about the north wall”. The building was asymmetrical, or “eccentric”, which the code warned against. Thus any designer choosing an asymmetrical design was obliged to take “extra care”.
So, given all the evidence, why has it not been possible to mount a prosecution? Christchurch crown solicitor Mark Zarifeh reviewed the police file and considered the case was “difficult and finely balanced” and the “likelihood of success would not be high”. Based on the royal commission hearings, it could be expected that Reay would mount a tough defence: “every possible point would be taken”, as Zarifeh put it.
The prosecution would have to prove that the deaths of the victims were caused by the omissions of the two engineers and that their conduct was a “major departure” from the standards of the day. It would have to establish that, but for the design failings, the building would not have fallen down.
Although the areas of contention would not, individually, create reasonable doubt, “the very real and difficult issue is whether in combination they could do so,” Zarifeh commented. Nevertheless, he concluded it was open for the police to conclude that the “evidential sufficiency” test under the Solicitor-General’s prosecution guidelines was met – that is, that there was a reasonable prospect of conviction.
Zarifeh saw challenges and difficulties, but gave the police the green light to go ahead with prosecution. Crown Law’s Brendan Horsley, however, saw insurmountable legal hurdles and the prospect of almost certain defeat. “A conservative approach is warranted,” he advised in his September 8 opinion.
He thought there would be trouble proving that, if not for the design flaws, the building would not have collapsed. Despite the evidence gathered from 28 engineers on the standards of engineering practice during the 1980s, he thought it would be difficult to prove Reay and Harding’s conduct was a “major departure” from what was expected of them.
And although the peer reviewers’ reports substantially agreed with Beca’s findings, Horsley amplified the areas in which there was divergence.
On top of that, a clause in the Crimes Act originating from medieval times – intended to draw a line under the length of time a person can be held liable for causing the death of another – was “potentially fatal”. This clause says that a person can be charged with manslaughter only if the death occurs within “a year and a day” of the unlawful act or omission – in this case, the failure of the engineers to design a safe building. Horsley acknowledged that it was “uncertain whether time begins to run from the relevant act or from the date of injury”, but concluded the clock started ticking from the moment the design was done, back in 1986. The police disagreed, but Crown Law’s view prevailed.
Nigel Hampton QC, who has worked with some of the families of the CTV victims, says Crown Law’s interpretation is not so much conservative as “timid”.
“Where are concepts as to public accountability in all of this? Public interest demanded, I believe, a judicial hearing, in full public gaze, with any competing evidential and expert views being aired, tested and resolved there, and not resolved, without proper airing and testing, in some Crown Law backroom.”
Hampton says the “year and a day rule” – which Read says didn’t even come into consideration until June this year – has been interpreted “speciously” by Crown Law. “Indeed, I would go further and say that rule, used as an excuse, in effect, was wrongly interpreted and applied here.”
In a case such as this, involving the alleged failure to properly design the building, Hampton argues the duty would have continued up until the moment of collapse on February 22, 2011. An engineer has a legal duty to design a building “that will have a safe life of not less than 50 years and that will not endanger lives and will keep people safe”, he points out.
Even in a case involving the avoidable deaths of 115 people, the cost of mounting a long and complicated trial came into Crown Law’s consideration. “A precise time estimate is premature but any trial is likely to be of several months’ duration [and involve] many lay and expert witnesses. While not in itself determinative, cost is clearly relevant,” Horsley wrote. “Overall we do not see the public interest factors as requiring the prosecution of a case that, at best, will be beset with difficulty.”
In the absence of accountability and justice, Maan Alkaisi promises that difficulties of a different sort will ensue. There will be protests “to show the public we are not happy, and why”. He wants to meet Prime Minister Jacinda Ardern and Justice Minister Andrew Little. “I want them to hear from me, and the families.”
“This wound will not heal until justice is done,” he says. After a royal commission and a long police inquiry, there has been nothing to bring it all to a close.
As a professor of electrical and computer engineering, he is appalled at the message the decision not to prosecute sends to his engineering peers in the construction industry.
“It says, ‘If the city council finds some serious issues in your design, ignore them, because the law does not find you guilty. If a report is sent to you saying the design will collapse in an earthquake because of this design, don’t worry, because the law is on your side. When the building collapses and kills a large number of people, don’t worry. If a royal commission finds there was non-compliance, don’t worry, you’re fine.’
“This is exactly what has happened here,” says Alkaisi. “Is this really correct?”
This article was first published in the December 16, 2017 issue of the New Zealand Listener.
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