Pike River families lose appeal

by Rebecca Macfie / 16 February, 2017

Photo/David White

As Pike families continue to fight for re-entry into the mine’s drift, the Court of Appeal has dealt a blow to their hopes for accountability. 

The Court of Appeal has ruled against a challenge brought by two Pike River mine families against the 2013 decision by Worksafe to drop all charges against the mine’s boss.

Peter Whittall was charged with 12 counts under the Health and Safety in Employment Act in November 2011, a year after the explosion that killed 29 men. The charges did not seek to prove that Whittall had caused the deaths of the men, merely that he had acquiesced or participated in the failure of Pike River Coal Ltd to keep the workers safe, and that he had failed to take all practicable steps to ensure that nothing he did as an employee harmed workers.

The charges were dropped after Pike’s former directors agreed to pay $3.41 million in insurance funds to the victims’ families and the two survivors of the explosion. Anna Osborne and Sonya Rockhouse have been challenging this decision through the courts for almost two years, alleging that Worksafe made an “unlawful bargain to stifle a prosecution in exchange for payment”.

The Court of Appeal today rejected their argument, concluding there was no “improper bargain” between Whittall and Worksafe.

The panel of three judges ruled that events leading up to the payment of the $3.41 million and the dropping of charges by Worksafe did not amount to a “meeting of minds and striking of a bargain”.

Although the discussions between Whittall’s lawyer and the Crown prosecutor had “many characteristics of a negotiation”, that did not inevitably lead to the conclusion that the decision to drop all charges was a “bargain”.

The court found that the “arrangement” to pay $3.41 million would not necessarily be accepted by Worksafe. The proposal to pay the money was a “conditional reparation undertaking” whereby, in the event that the prosecution was terminated, the payment would be made.  It was up to Worksafe to decide whether to pursue the prosecution.

Worksafe took the $3.41 million payment into account in deciding to drop the charges, but the court found “there is nothing improper about that”.

The Worksafe executive who made the decision to drop the charges had no financial interest in the outcome or the “alleged bargain”, did not negotiate it, and “was not captive to a bargaining mindset”.

Whittall was the key driver of the mine’s development from 2005, was statutory mine manager at various times and was chief executive of the company at the time of the disaster. The company itself was prosecuted in 2013 and ordered to pay a record fine and $3.41 million in reparations to the families, but it was unable to pay the money because it had gone broke three weeks after the explosion.

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