Osbourne & Rockhouse v WorkSafe New Zealand

Osbourne v WorkSafe New Zealand 2017 NZ.pdf
Geographical Area
New Zealand
Case Name
Osbourne v WorkSafe New Zealand
Case Reference
[2017] NZSC 175
Name of Court
Supreme Court of New Zealand
Key Facts
On 19 November 2010, explosions, most likely involving methane, occurred deep within the Pike River Mine. 16 miners and 13 contractors were killed. Their bodies have not been and are not likely to be recovered. Two miners who were near the surface survived.

The Accident Compensation Corporation (ACC) provides compulsory personal injury insurance for everyone in New Zealand, including visitors. If an injury or death is covered by ACC, which the victims in this case were, no one is permitted to bring civil proceedings for personal injuries in New Zealand. For this reason, justice for the victims rested on charges being laid by WorkSafe (the Crown entity who administers New Zealand’s Health and Safety legislation) or the police.

The police did not charge anyone, however, WorkSafe charged various parties including Peter Whittall, Pike River Coal’s director and chief executive officer. In an arrangement with WorkSafe, Whittall made a payment of NZ$3.41 million on the condition that WorkSafe offered no evidence on any of the charges. The case against Whittall was dismissed by the Court.

Osbourne and Rockhouse, who lost a husband and son respectively in the explosion, applied for judicial review of WorkSafe’s decision to not offer evidence. They claimed that this decision was unlawful as it was based on a bargain to stifle prosecution and failed to comply with either the Solicitor-General’s Prosecution Guidelines or the purpose of the Health and Safety in Employment Act. Their claim failed at the High Court and the Court of Appeal, it was then appealed to the Supreme Court.
Decision and Reasoning
The Court stated that an agreement not to prosecute in return for payment of money to compensate the victims would have been unlawful and that a decision to offer no evidence in fulfilment of such a bargain would have then been taken unlawfully. For this reason, the central issue was whether Whittall’s conditional arrangement to pay the reparations owed by Pike River Coal to the victims was an attempt to prevent prosecution, or an offer of voluntary payment which WorkSafe was entitled to take into account when making decisions surrounding prosecution.

The Court reached “the inevitable conclusion that such arrangement was an unlawful bargain to stifle prosecution”. The Court held that it was irrelevant that WorkSafe had other reasons for resolving the charges without trial, such as the cost and what they perceived as a lack of public interest, as this did not take away from the fact that the arrangement would only occur if WorkSafe agreed to not offer evidence. Nor was it relevant that the arrangement was put forward by Whittall. They also noted that in exchanges between Whittall’s counsel, the Crown Solicitor and WorkSafe, the conditional arrangement was called the “central arrangement”.

It must be noted that the Court found there is considerable public interest in prosecuting breaches of safety in employment and it did not matter that there was an underlying harm, in that the families would not otherwise have been paid what was owed to them.
Due to the passage of time, the Court was not able to grant an order requiring the prosecution of Whittall.

As a result of this case, as of 23 November 2020, the New Zealand Law Society was investigating a complaint into Stuart Grieve QC (Whittall’s lawyer) and Brent Stanaway (then Crown Solicitor) for their involvement in the unlawful deal. The outcome of this investigation has not yet been published (as of June 2021).
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.