Council, CEO will be under scrutiny in WorkSafe probe of Mt Maunganui landslide - lawyer

A lawyer specialising in health and safety says WorkSafe may choose to prosecute over the Mount Maunganui tragedy.

Six people died after a landslide at Beachside Holiday Park in Mount Maunganui in January and a damning independent report released on Wednesday found the council had known about the dangers of the site for decades.

Retired high court judge Hon Paul Davison KSO KC, who wrote the report, concluded the six deaths were preventable.

His review didn't consider liability, but other investigations, including WorkSafe's ongoing one, will.

Barrister Garth Gallaway who has worked on high-profile cases, including Pike River, the Canterbury earthquakes and Whakaari /White Island, says councillors are excluded from liability, but the council's chief executive could be held liable.

He told Morning Report it was also possible the council could be liable as an organisation, without any individual being blamed.

He said WorkSafe had 12 months from the date of the tragedy to lay charges so the deadline would expire on 22 January, 2027.

"The whole process takes quite a long time ....because it's pretty detailed. They'll be looking at which parties in those circumstances had obligations."

Under the law, a person conducting a business or undertaking (a PCBU) had obligations to workers and other people, so he expected WorkSafe would look closely at the council as well any management team for the campground where the landslide occurred.

The Mauao Trust could also be investigated although it was a volunteer organisation so that might exclude it, he said. The Mauao Trust holds the title to Mauao (Mount Maunganui) on behalf of the region's three main iwi: Ngāi Te Rangi, Ngāti Ranginui, and Ngāti Pūkenga.

Gallaway said the council's duties would be looked at.

"In reading Justice Davison's report, it does seem that there have been systemic failures over a long period of time so that makes it harder for those failures to sit with an individual."

After the Pike River tragedy, the Health and Safety at Work legislation was introduced in 2016 and brought in pro-active duties to health and safety for the likes of officers and directors.

This was a layer that had been missing from health and safety legislation, Gallaway said.

Councillors were deemed to be officers under the law but were excluded from criminal liability.

A council's chief executive would be considered an officer and could be prosecuted.

"That requires a detailed investigation of looking at an individual's obligations and working out whether or not there has been a breach. It's entirely possible that a PCBU, so a company or an organisation, could have breached the act but the individual officers haven't."

Gallaway said since the legislation was introduced, WorkSafe had shown "extreme reluctance" to interview officers.

It had brought an occasional prosecution.

He had done numerous investigations in the last 10 years "and in all of the many cases I've done I've not seen an officer interviewed by WorkSafe".

That was not the case for Maritime New Zealand and the Civil Aviation Authority which regularly interviewed officers, he said.

"So it'll be very interesting to see if they [WorkSafe] stretch things a little bit in this case and do have a look at individual liability."