Nearly five years after the death of their son Niko in a forestry workplace accident, the Brooking-Hodgson whanau are finally getting their day in court.
At the Gisborne courthouse yesterday, Coroner Donna Llewell opened an inquest into Niko's death, saying she hoped it would bring his whanau peace and finality.
The whanau's disappointment at WorkSafe's decision not to prosecute after its investigation, has been widely reported. That decision however, will not be examined as part of the inquest.
Yesterday Coroner Llewell reminded everyone the purpose of the Coroner's Act was “to help prevent death and to promote justice through investigations and the identification of the causes and circumstances of sudden and unexplained death or death in special circumstances; and to make recommendations or comments that, if drawn to public attention, may reduce the chances of further deaths occurring in circumstances similar to those in which the death occurred”.
It was not her role to determine any civil, criminal, or disciplinary liability, the coroner said. This was not a criminal jurisdiction, no charges were laid or being considered here, the coroner said.
Niko O'Neill Brooking-Hodgson was 24 when he was fatally injured at about 11.20am on August 22, 2016, on a worksite in a block of Esk Forest at Te Horoto, northwest of Napier.
He was employed by DG Glenn Logging Limited as head “breaker out” — someone who attaches steel cables to felled trees so they can be winched by a hauler out of the forest onto a skid site. He was considered a skilled, well-trained, and experienced worker.
At the time he was on steep terrain, involved in retrieving the hauler line so the hauler could be moved to another site.
A 9kg metal D-shackle was being sent back to the hauler on the end of the line when it got snagged on logging debris and tension was put on to it by the hauler driver to try to get it free.
As it dislodged from the snag, the released tension caused it and the line to jettison towards Niko, striking him in the chest and head. His injuries were not survivable and he died at the scene in the arms of his foreman about 40 minutes later.
Yesterday the inquest heard witnesses from the Brooking-Hodgson whanau including Niko's father Richard Brooking, himself a forest worker of many years' experience. Niko's seven-year-old daughter sat alongside her grandad as he gave his evidence.
In an opening statement for the whanau, counsel Oliver Christeller said two approaches had been taken to Niko's death: the first was that it was due to worker error — that Niko was standing in the wrong place at the wrong time.
But that was not borne out by the evidence and it did not sit well with the Coroner's Act or the Health and Safety at Work Act 2015 (HSWA), Mr Christeller said.
He pointed to a recent criminal court decision against Pakiri Logging Limited and Ernslaw One Limited over the death of worker Nathan Miller in similar circumstances.
In that decision Judge Warren Cathcart gave no weight to submissions Mr Miller somehow contributed to his own injuries by being too close to the hauler. The judge cited case law as to the legislative onus on a person controlling a business or undertaking (PCBU) to guard against workplace accidents that result from foolishness or carelessness by an employee.
Under the Act one of the primary duties for a PCBU was to ensure as far as practicable, the provision and maintenance of safe systems at work, Mr Christeller said.
He said, “The employer isn't off the hook in a negligence argument.”
Mr Christeller said Niko's whanau believed his death was due to major systems failings — and that approach was the right one.
The HSWA is clearly premised on a systems approach — concentrating on the conditions of work, building the best possible safety system to avert errors and mitigate risk.
It is based on the understanding that humans make errors, Mr Christeller said. The HSWA moves away from criticising individuals —Niko, the hauler operator on the day, management, or whoever.
Mr Christeller said the whanau wanted to focus their submissions on factors that would reduce the chance of further similar deaths.
In evidence, Niko's father said the number of people killed in forestry accidents should alarm all New Zealanders. Niko's whanau felt not only sad but angry - these deaths were avoidable.
There had been four in the region where Niko was working and just three weeks ago a 23-year-old man had also died.
Niko's foreman died at work five months ahead of him and although in a different region, Niko's cousin Piripi Bartlett died 364 days after him.
He knew the situation for breaker-outs would improve when the industry became fully mechanised but that was not happening fast enough and people were still dying, he said.
Mr Brooking said health and safety culture processes were not taken seriously enough by the PCBUs whose focus was on doing work quickly and cheaply while only paying lip service to health and safety.
The industry was not sufficiently regulated. Existing regulations were often ignored and not adequately enforced. The oversight of the industry was seriously inefficient, Mr Brooking said.
He believed health and safety regulations needed to be clearer and more direct.
He said forestry work was undertaken in rural areas where there was often high unemployment and few job opportunities, with people under pressure to keep their jobs, keep their employers happy, and with few other employment opportunities.
The whanau want changes made to the Approved Code of Practice for Safety and Health in Forest Operations (ACOP), with ground level workers consulted about those changes.
The glove-box-sized ACOP manual spawned in 2012, is considered the “bush bible” in forestry and offers practical guidance as to how people engaged in all areas of the industry can meet their obligations under health and safety legislation. Many forest workers consider it a one-shop stop they can easily reference while in the field but that said, it is also known to have gaps that some people say made in inadequate from the outset.
The inquest heard the ACOP has legal status that other training manuals and best practice guides lack, including one specifically developed for line retrieval since Niko's accident.
Mr Christeller said there were three major issues of failure in the defence systems that led to Niko's death, about which the whanau wanted the coroner to make recommendations, specifically to update the ACOP.
Those failings were:
' The absence in the ACOP of any documented process or guidance for line retrieval, no competency requirements for it, no guidance on the use of straw line, clearing obstructions, control, safe retreat distances, or exclusion zones.
' Absence of a strawline in the line retrieval. Had one been used, it would have averted a snag or could have been used to clear one safely.
' That the obstruction was not cleared in a safe manner — tension was never released from the snag, which led to a “loaded gun” situation and there was insufficient communication between the hauler operator and the head breaker-out (Niko). Crucially when tension was used to clear the obstruction it was done without confirmation of Niko being in a safe area or an exclusion zone.
Furthermore, Mr Christeller said DG Glenn did not have any specific policies for line retrieval at the time of Niko's death and there was no evidence of an exclusion zone or safe retreat distance having been identified. The company's lawyer Brian Nathan challenged this.
Niko's death was due to a combination of all those gaps and where he was standing, albeit it was not known if that was identified as an unsafe place at the time, Mr Christeller said.
Mr Brooking said the whanau wanted the recommendations, “so that something good can come out of this deep pain that we feel, so that other whanau are spared that pain and loss, so that children don't lose their parents and parents don't lose their sons”.
“So that we begin to feel that society values the lives of the predominantly rural Maori communities of forestry workers as much as the large and other communities in Aotearoa,” he said.
In response to questions from WorkSafe counsel Anna Longdill, he said lack of unionisation in the forest industry was a problem that contributed to workers not having a voice.
He rejected Ms Longdill's suggestion the ACOP manual would become unwieldy and impractical if it included more detailed information like that contained in separate best practice guides. Consultation with ground level workers would ensure only the most relevant things were included and it remained quite streamlined, Mr Brooking said.
The two witnesses called by the whanau were Leonard Reedy, an experienced hauler operator also involved in training for A and R Logging, and Hazel Armstrong, a lawyer and New Zealand Council of Trade Unions representative who contributed to a taskforce after the Royal Commission on the Pike River Coal Mine Tragedy as part of the development of the HSWA.
Their evidence supported that of Mr Brooking.
Mr Reedy said it was unacceptable for Niko's crew not to have been using a straw line that day, which would have saved his life. Questioned by Mr Nathan, Mr Reedy confirmed in the setting in which Niko was working, great care would have been needed not to put excess tension on that line. (That particular site was difficult, involving a distance of 300m with the hauler's lines elevated above it.)
Ms Armstrong was one of three people on a forest industry inquiry board set up in 2014 to address the industry's concern about the social licence to continue to operate in the face of about 36 fatalities. A report they produced was adopted by Government and the industry.
Ms Armstrong said issues identified by that inquiry were still relevant now and the rate of death had continued to rise – 44 depending on who was included in the scope.
This inquest came at a time when they needed to be addressed again, Ms Armstrong said.