OPINION: Now that the Canterbury Earthquakes Royal Commission has made its damning findings on the causes of the collapse of the Canterbury Television building, people are turning their minds towards holding someone to account for the tragedy.
The royal commission was directed only to find the causes of the collapse. Questions of liability were specifically excluded from its terms of reference. Those questions have not gone away, however.
Indeed, the royal commission's conclusion that a succession of failures - with the design, the consent, the construction, a later modification and finally a post-September 2010 inspection - had led to the collapse and death of 115 people has only reinforced the cry that someone should be held responsible. Doing that, though, will not be easy or straightforward. Any legal action is likely to be protracted.
The Government has said that it has lawyers closely examining the royal commission's report to see what, if any, cases could be made. Because compensation for death or injury is covered by the accident compensation scheme, any civil action brought by injured victims or the families of those who died would have to be for what are called exemplary damages. This would require showing negligence amounting to a flagrant disregard of those to whom a duty of care was owed.
Any court action for damages would have to prove that the actions or inactions by an individual or organisation caused death or injury and that liability should follow. One immediate difficulty is with problems of getting evidence that would be admissible in a court. The design work on the CTV building started 26 years ago. Some of the leading participants in the process have since died. Some evidence, such as second-hand evidence given by friends and relatives of what they had been told, was rightly heard by the royal commission as relevant to its task, but would be open to serious challenge in an action in court.
Some families have spoken of their desire to see manslaughter charges brought against those they believe responsible for the disaster. That, too, would pose difficulties and, as the Pike River mine accident shows, the difficulties are not easily resolved. So far the only prosecutions arising from that event have been under occupational health and safety legislation.
Two years after the event, the police have still to decide whether to bring any further charges. The problems concerning admissible evidence would also be greater in any criminal trial than in a civil action and a further hurdle would be the requirement to prove the charges to the higher criminal standard of beyond reasonable doubt.
According to the Minister of Building and Construction, Maurice Williamson, New Zealand will not be able to move on until individuals are held to account for the collapse of the Canterbury Television building. In saying that, the minister is reflecting the entirely understandable feelings of many.
But given the difficulties facing legal action, it would be a pity if it were entirely true. Legal action focuses on the past. While the royal commission had to find out what past actions had contributed to the disaster, a principal, and much more important, function was to provide answers for the future and, it must be hoped, prevent any repetition of the disaster. It is the lessons from the royal commission that look forward we should focus on.
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