The workplace safety watchdog chose not to investigate the fatal Ruapehu bus crash under health and safety laws even though there was no one else who could do the job.
File image. Photo: RNZ / Samuel Rillstone
The crash happened at a time when police powers under new, tougher health and safety law were in limbo.
An inquest is continuing into the July 2018 crash that killed 11-year-old Hannah Francis and injured 18 others, after the brakes failed on a skifield bus.
Police investigated under the Land Transport Act. They did not charge the driver, though an inspector told the inquest in hindsight they probably should have.
No investigation was conducted under the Health and Safety at Work Act (HSWA).
The MOU
In a statement to RNZ, WorkSafe said it "did not undertake a HSWA investigation. WorkSafe advised the New Zealand police that based on its MOU with WorkSafe, they were the proper agency to investigate".
However, that memorandum of understanding was in limbo at the time of the bus crash.
When the new HSWA came into effect in April 2016, "police lost the powers they were granted as inspectors under the previous act", police told RNZ in a previous Official Information Act response.
The old MOU applied only to the old 1992 law.
The police commercial vehicle safety team "was not authorised to investigate HSWA incidents between April 2016 and October 2018", police said.
An agreement so they could was "formalised though a new MOU between police and WorkSafe that was enabled in October 2018".
The outcome
The result was that no-one looked at the Ruapehu crash through the lens of the 2016 law, which was toughened up after the Pike River mine disaster in order to identify systemic safety failings and hold companies accountable for risky or dangerous work practices.
The Ruapehu inquest heard from the bus driver admitting that he falsified training records the day before the 2018 crash.
With no HSWA investigation, there could also be no health and safety prosecution, denying any reparations to Hannah Francis's family.
Police have refused to comment to RNZ while the inquest is underway.
Hannah's family has been approached for comment.
Inquest hears of mix-up
At the Hannah Francis inquest in Auckland, the police inspector in charge of the case did not indicate, in evidence given last week, that he knew the Memorandum of Understanding with WorkSafe was not enabled at the time of the crash.
Instead, Detective Inspector Neil Forlong spoke about a mix-up with WorkSafe, with the result that he thought an HSWA investigation was taking place, when it wasn't.
"I do also want to ask about the investigation that never happened," the counsel assisting the coroner, David Boldt, said at the inquest.
"Perhaps what we can charitably call a misunderstanding or miscommunication between WorkSafe and police."
Forlong explained that, for an HSWA investigation to take place, it must be communicated directly through the national manager of the police's commercial vehicle safety team (CVST).
In the Ruapehu case, police got an email stating that "HSWA were looking at it", Forlong said. He agreed this email amounted to WorkSafe handing over any health and safety investigation to the police.
"When I got that email I thought that process was already in place.
"I thought that matter was being dealt with by CVST separate to the criminal investigation."
But in fact, the CVST national manager had not been informed.
"So there was a misunderstanding," Forlong said.
"And that is something that we need to work out between ourselves as two organisations."
However, although there was a miscommunication, and although no police HSWA investigation was activated, this exchange at the inquest did not address the fact that at the time of the crash the police had no powers to investigate under HSWA anyway, as they have stated previously to RNZ.
Other issues
The limbo MOU period of 2016-18 also covered a fatal truck-rear-ender on the Desert Road that killed two boys at Easter 2018. WorkSafe also chose to leave it up to police to investigate, only stepping in almost a year later to investigate using HSWA.
The 2018 MOU with WorkSafe says if police identify work-related factors in a crash, they will refer that information to WorkSafe.
However, police had no-one trained to use HSWA until September 2018, with others warranted in October and February 2019, previous OIAs showed.
Even now, there are only about half as many warranted officers as there were prior to the new law coming in: 28 compared with about 50.
A former WorkSafe investigator told RNZ the agency would have known that with the MOU in limbo, cases left with police would "likely not go very far at all" on health and safety grounds.
This was because police were much more familiar with investigating under the Land Transport Act, which had a focus on just four immediate factors of speed, impairment, restraints and distraction.
Police also had less time - six months - to complete an investigation under the Land Transport Act, than under HSWA -12 months.
It was also "much harder to build a HSWA case than, say, careless driving", the ex-investigator said.
"You prioritise accordingly."
WorkSafe investigators have been internally assessed in 2019 as overworked, under-trained and lacking investigative oomph.
WorkSafe said it was working to fix that.
Asked by RNZ to detail the road crash cases that police had referred to it recently, WorkSafe said it did not capture that information in a readily retrievable manner and refused to provide it.