Somebody must have made a false accusation against Josef K., for he was arrested one morning without having done anything wrong.
Reads the opening sentence of Franz Kafka’s The Trial (translated from German). After being arrested, Josef K. is freed and told to await instructions. I’m not sure if I need to give a spoiler alert for a novel published almost 100 years ago, but, despite attempting to engage with an incomprehensible and labyrinthine legal system, Josef K. never actually finds out exactly how he’s alleged to have broken the law.
I imagine that Josef K.’s predicament strikes a chord with scientists in the employ of the Crown Research Institute GNS Science, after it became apparent that GNS Science was one of the thirteen parties being charged by WorkSafe in relation to the Whakaari/White Island eruption in December last year. Among other things, GNS Science is responsible for providing alerts over volcanic activity at the island. In collaboration with the Earthquake Commission, it provides geological hazard information for New Zealand at geonet.org.nz.
The main aim of this post is to explore the Kafkaesque situation that these scientists find themselves in. It might be that some of my comments also apply to other parties that have been charged, but I’m going to focus on GNS Science. I’ll look back to just over a year ago, when the eruption occurred, before moving back to the present and our health and safety law.
The Whakaari/White Island Eruption
On 9 December 2019, Whakaari/White Island, an active volcano, erupted. There were 47 people on the island at the time. 22 were killed (including 2 missing and declared dead) and 25 were injured. 38 of the people on the island were on a shore excursion from the cruise ship Ovation of the Seas.
Two weeks earlier, GNS Science raised the volcanic warning alert level for Whakaari/White Island to level 2 (“Volcanic unrest hazards, potential for eruption hazards”). A week before the eruption, it barred its staff from going near volcanic vents.
The event has raised all sorts of questions, including whether there should be any tourism related to the island at all, what visitors to New Zealand can get from our accident compensation scheme, and what effect New Zealand’s ACC scheme has on tourists bringing lawsuits outside of New Zealand. Here, I’m focusing on aspects of WorkSafe’s response.
WorkSafe investigates and charges
WorkSafe, the government health and safety regulator, investigated the deaths and injuries. After concluding the investigation, which WorkSafe’s CE said was the most extensive and complex investigation it had undertaken, issued a press release on 30 November announcing that charges were filed against 13 parties, stating:
22 people have lost their lives in this tragic event. WorkSafe is tasked with investigating workplace incidents to determine whether those with health and safety responsibilities met them. This was an unexpected event, but that does not mean it was unforeseeable and there is a duty on operators to protect those in their care.
The press release quoted the Chief Executive Phil Parkes as saying:
This tragedy has had a wide ranging impact on victims, families, communities and iwi. There were 47 people on the island at the time of the eruption, all of whom suffered serious injuries and trauma, and 22 of those have lost their lives. Those who went to the island, did so with the reasonable expectation that there were appropriate systems in place to ensure they made it home healthy and safe…
That’s an expectation which goes to the heart of our health and safety culture. As a nation we need to look at this tragedy and ask if we are truly doing enough to ensure our mothers, fathers, children and friends come home to us healthy and safe at the end of each day.
The press release gives the following details, in addition to identifying that 13 parties were charged in the Auckland District Court:
10 organisations were charged, nine under section 36 of the Health and Safety at Work Act 2015 (HSWA) and one under either section 36 or 37. I’ll take a close look at section 36 shortly, section 37 relates to parties that control a workplace;
Three individuals (ie human people) have been charged under section 44, which imposes a duty on officers of an organisation to exercise due diligence to make sure that the organisation fulfils its health and safety duties;
WorkSafe did not identify the parties that were charged, to give them the opportunity to seek name suppression, a step which seems reasonable to me; and
WorkSafe states that they will not release the investigation reports to the charged parties “until the conclusion of the legal process” to “respect the need to ensure the maintenance of the law, including the proper conduct of court proceedings.”
Section 36 of the Health and Safety at Work Act 2015
Section 36 of the HSWA establishes the “Primary duty of care” in our workplace health and safety law. A PCBU (a “person conducting a business or undertaking”) has a duty to ensure, so far as is reasonably practicable, the health and safety of:
Workers who work for the PCBU while they are at work;
Workers whose activities in carrying out work are influenced or directed by the PCBU while those workers are carrying out work; and
Other persons whose health and safety can be put at risk by work carried out as part of the conduct of the PCBU.
It’s these latter two points that are most relevant to GNS Science. An organisation has obligations to any workers whose activities are influenced by the organisation, and other persons whose health and safety can be affected by the conduct of the organisation. That means that GNS Science can have responsibilities towards workers and tourists on the island, even though the workers aren’t GNS Science’s workers, and the tourists aren’t GNS Science’s customers.
You might be thinking: wow, that gives our health and safety law quite a long reach, since organisations might have obligations in relation to people far beyond their conventional workplace. You’d be right to think that, and it is intended to be that way. The HSWA followed a Royal Commission of Inquiry into the Pike River Mine Disaster, which highlighted deficiencies in our health and safety law. The HSWA is prolific when it comes to imposing duties. As well as the primary duty of care, certain sorts of PCBUs can have a number of other duties imposed upon them, for example s 37 which relates to PCBUs that manage or control a workplace, or s 39, which relates to PCBUs that design plant, substances, or structures.
But, the HSWA does not expect perfect foresight or total elimination of all risks. The primary duty of care requires PCBUs to take reasonably practicable steps to ensure health and safety. Section 30 of the HSWA clarifies that that means to eliminate risks to health and safety where it is reasonably practicable to do so, and when it’s not, to minimise risks as far as is reasonably practicable.
Section 30 also states that a person must comply with the duty to eliminate or minimise risks:
to the extent to which the person has, or would reasonably be expected to have, the ability to influence and control the matter to which the risks relate.
That’s an important qualification when it comes to the duties of organisations like GNS Science, which are distant from a workplace figuratively as well as literally.
It’s also worth noting that section 34 imposes a duty where more than one PCBU has a “duty in relation to the same matter”. Where that is the case:
each PCBU with the duty must, so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities with all other PCBUs who have a duty in relation to the same matter
Section 34 is an important section when it comes to workplaces where multiple PCBUs have influence and/or workers.
Response to the charges
Following WorkSafe’s announcement, a number of parties have identified themselves as being charged: GNS Science (reported as saying it stood by its people and its science), Nema (the National Emergency Management Agency), White Island Tours, Volcanic Air Safaris, Whakaari Management Ltd (the company of the family that owns the island), and two helicopter pilots who helped with the rescue operations.
The Association of Scientists recently suggested that prosecuting a scientific institution could create a cone of silence while legal proceedings take place, as the RNZ story put it.
Association president Troy Baisden said:
Really we do need free and frank advice and it has to be fast and carefully consider the uncertainties that people need to hear because the government needs to take action and people need to make a lot of individual decisions in an emergency… it is potentially chilling and you can imagine what it's like to be a scientist in this sort of environment, where perhaps people have trained for their entire career and only have one major event where they can use their skills developed over a career to help protect the public - what happens if it doesn't go well?
Baisden referred to an incident where Italian scientists were jailed after a 2009 earthquake which killed 29 people. The six scientists (along with one government official) had been convicted of manslaughter for downplaying the likelihood of a major earthquake. The scientists’ convictions were overturned on appeal in 2014. There was some quite critical international coverage of the convictions, including an editorial in Nature.
My comments
So, is a comparison with the Italian case, or with Josef K. for that matter, a fair one? And is the concern that the charges have a chilling effect a legitimate one?
To my knowledge, GNS Science the organisation has been charged, but no staff have. It does not appear that a repeat of the Italian scenario, where individual scientists are imprisoned, is on the cards.
Whether or not GNS Science, like Josef K., have been charged without doing anything wrong, remains to be seen. To successfully prosecute GNS Science, WorkSafe will need to establish that there are some reasonably practicable steps that GNS Science should have taken. It may well be that WorkSafe can clearly identify some specific things that GNS Science should have done, but did not.
So, I will proceed on the basis that WorkSafe clearly has in mind what GNS Science was supposed to do, but they’re not sharing this with GNS Science at the moment. That’s what makes it so Kafkaesque. It’s hard for GNS Science to think about what their defence might be if they don’t quite appreciate what they’ve been accused of. Even worse, it is not possible for them to determine if there’s something they should be doing differently right now. Although nobody’s going to White Island at the moment, GNS Science provides Volcanic Alert Level information for a number of other places, such as Ruapehu.
Businesses and other entities that provide information or forecasts relevant for people’s health and safety are likely feeling a little nervous following the news that GNS Science will be charged. This might lead to a chilling effect, with organisations ultimately deciding not to offer such services in future.
Organisations that have already been providing information relevant to health and safety, like GNS Science, might feel in a bit of a ‘damned-if-you-do, damned-if-you-don’t’ bind. Deciding to cease providing information could be found to be a failure to take a step necessary to ensure the health and safety of other persons is not put at risk by your work. However, any information that you do provide might be found to fall short.
What that might lead to is, rather than a chilling effect per se, is routine over-stating of risk. This is akin to the practice of ‘defensive medicine’, where medical practitioners recommend diagnostic and treatment options based on fear of litigation rather than the best interests of the patient. If GNS Science, for example, erred on the side of over-stating the risks to visiting White Island, for example, then there might have been no visitors on the island when it erupted. Perhaps that would be a good thing. But we might have reservations. I’m not a scientist, but if I were, then I suspect I’d feel uneasy at providing inaccurate information. For some entities, providing overly conservative risk assessments might breach contractual obligations.
Of course, it might be that the basis of WorkSafe’s decision to charge GNS Science was not actually to do with the provision of alert level information. Perhaps GNS Science could, and should, have issued specific warnings or guidance along the lines of: “don’t visit the island while at Alert Level 2”. But we don’t know. And the fact we don’t know is what makes this Kafkaesque.
WorkSafe’s actions might make more sense if they were purely a prosecutorial agency – they’re holding their cards close to their chest to try and get the best outcome at trial. But that’s not all WorkSafe is. They describe themselves as “work[ing] collaboratively with businesses, undertakings, workers and their representatives to embed and promote good work health and safety practices”, and have an educative as well as enforcement role in relation to health and safety law. The approach that they’re taking to these prosecutions might risk their reputation as an approachable regulator.
Who safe-s the WorkSafe?
One final Kafkaesque thought: As New Zealand’s primary workplace health and safety regulator, WorkSafe themselves sure have a fair degree of influence over workplace health and safety. That thirteen different entities have been charged suggests that there were some pretty big gaps all around – perhaps there are some areas where WorkSafe themselves could, and should, have done better?
Last year, Parkes, WorkSafe’s then COO (now the CE), rejected John Campbell’s suggestion that the agency might have a conflict of interest because of its own role in adventure tourism safety audits (WorkSafe runs the register and sets the standards, audits are performed by third parties, White Island Tourts had been passing its audits).
“Ultimately it’s the responsibility of each business to run their business safety”, said Parkes. But that’s not what the law says. It is the responsibility of each business to run their business safety. But the HSWA is not stingy with duties, and if it can reach GNS Science, then why not WorkSafe? Perhaps we need a new agency: WorkSafeSafe, to determine whether WorkSafe is meeting its obligations under the HSWA on the basis that it has the ability to influence workers and can put the health and safety of other persons at risk through its conduct.
Thanks to Professor Colin Gavaghan and Dr Dawn Duncan for comments on a draft version of this piece.