'Manifold sins' cost 12 lives

BACK ON TRACK: Ann Brower leaves Burwood Hospital  after  five weeks rehabilitation for injuries suffered in the February 22 earthquake.
BACK ON TRACK: Ann Brower leaves Burwood Hospital after five weeks rehabilitation for injuries suffered in the February 22 earthquake.

Ann Brower was the sole survivor of 13 people who were crushed by an unreinforced brick building at 603-13 Colombo St last February 22. Nine were on the No 3 bus and four were on the footpath. She says 'manifold sins of omission' allowed the deaths.

It was hard to stop crying after I read the history of the building that crushed us.

It was declared dangerous in 1982. Cracks in the parapet discovered in 1991. A gap of 44mm between the facade and the building proper discovered on Boxing Day 2010.

The City Council's requests for repairs by January 31 politely ignored. The owners requested demolition, but the council said it had no choice but to follow a full six-month consent process.

At the royal commission hearing on February 1, 2012, every inspector, every engineer, and every builder said the building was dangerous, irreparably damaged, leaning out over Colombo St, and a danger to the public. In the inspection record, not one said it was safe.

But there was no cordon and no fence around the building. Colombo St was open for business. We suffered not from a sin of commission, but manifold sins of omission.

There was nothing natural about the disaster that befell the 13 of us. It wasn't the earthquake. It was the building, decisions made about the building, and the failure to enforce those decisions.

Regulatory failure at its most murderous made Colombo St run red that day. Responsibility falls at the feet of the building owners, Parliament, and most of all the Christchurch City Council.

In the Building Act 2004, Parliament encouraged and enabled, but failed to require, councils to enforce a minimum safety standard for known "earthquake prone" buildings.

Christchurch City Council chose a "passive" policy, of no strengthening requirements. Parliament failed to require, the council failed to enforce, and the owners failed to reinforce - in 1982, in 1991, in 2005, after September 2010, and after December 2010. For 30 years, the owners and the council did nothing.

On Day 1 of the hearing, the building owners blamed the council, for delaying demolition with the consent process. Council solicitors blamed the Resource Management Act, for requiring consents, and said they had no discretion in the matter.

Council's hands were tied, they said.

Yet, on September 14, 2010, a unanimous Parliament untied council's hands when it passed the Canterbury Earthquake Response and Recovery Act 2010. It gave the Crown power to amend or repeal any law, in the interest of public safety and earthquake recovery. Then they issued an order in council that expanded the situations in which council could demolish without consent. City council had the power.

On Day 2 of the hearing, council staff admitted that they were aware of this power, but found it draconian, so used it only three times. Neither heritage nor the RMA was to blame here. Council ignored the powers Parliament granted. Since when can city council second-guess a unanimous Parliament?

On Day 2, council staff said they would have considered invoking these special powers only as a last resort. A cordon or a fence were better options, they said. Indeed the inspector's report from December 27 recommended "reassess current barricade urgent attention main thoroughfare (emphasis in original)". This building was on the corner of Colombo St and Mollett lane. Council staff interpreted the major thoroughfare requiring a cordon to be Mollett lane.

At this point in the hearing Justice Cooper asked "Mollett lane is a main thoroughfare, is it?" Nothing gets past him.

The facts that Mollett lane was already entirely barricaded and is one block long might suggest that Colombo Street was the main thoroughfare requiring a cordon due to the "severe overhead falling hazard," "severe structural damage," and "severe neighbouring building hazard" noted on the inspector's report.

Still, council never followed up. As a result, neither demolition nor a cordon was ever seriously considered. This is not a way to govern.

The evidence, five centimetres thick, makes it searingly obvious that everyone knew what would happen. It was predicted but not prevented. It's not a case of trying, but failing, to protect public safety. Everyone failed to try, likely because neither council nor the owner bore the risk of deaths and injuries.

ACC bore the risks. I bear the scars. And 12 died. Under ACC, the government absorbs all liability, no matter who is at fault. So to the owners, safeguarding the building was all cost and no benefit. Since council failed to enforce building standards, why repair? Absorbing all liability creates a moral hazard. That's economist-speak for unwittingly encouraging risk by cheaply insuring against it. This rewards irresponsible behaviour by failing to penalise it.

The regulatory framework in place on February 22 forced taxpayers to subsidise risks that should have been borne by building owners and their insurers. Subsidies render unaffordably risky activities affordable, like repeatedly failing to reinforce an unreinforced brick building less than 200 kilometres from the Alpine Fault.

Without the taxpayers' subsidy of the risk through the no-fault ACC Act, many of the unreinforced masonry buildings would have been too expensive to insure, and the 12 who travel with me might still be alive. If there are to be subsidies, it is better to subsidise safety with public funding for earthquake strengthening than to subsidise risk.

The building owner considered making the leaning facade safe by using steel straps. But that would have cost $200,000, so all plans stopped. Incidentally, similar protective measures on the building next door worked a treat. The parapet collapsed inwards, thus hurting no-one.

Also, incidentally, saving my left leg has cost taxpayers $108,090.38 so far. Approximately.

Privatising profits and socialising risks happens frequently. But on that block of Colombo St it killed 12. I won't deign to put a value on their lives.

Neither privatising ACC nor putting accident victims in the middle of a compensation fight will fix this moral hazard problem. Recouping costs from parties at fault would be a good start. Hindsight is beautiful, of course, but in moving on we must think carefully about our regulatory structures.

A year after the quake, we are starting to move on. In moving on, let us not forget those for whom "full replacement value" is a nonsense. Let us not forget those for whom moving on means getting used to walking with a limp, if at all.

Further, we must not forget the sins of omission that killed and injured so many. Mistakes forgotten are destined to be repeated. We can forgive, but let us not forget.

*Dr Ann Brower is a senior lecturer of public policy at Lincoln University. She testified this month at the Royal Commission of Inquiry into Building Failures in the Christchurch Earthquake.

The Press