Whangārei Boys’ High School and its board of trustees may be liable for prosecution following a student’s death on a school caving trip, say health and safety lawyers.
WorkSafe confirmed an investigation has begun into the death at Abbey Caves in Whangārei, but cannot comment further while the investigation is under way.
Whangārei Boys’ High School principal, Karen Gilbert-Smith, said a "full and comprehensive" investigation would take place.
She broke her silence five hours after the Year 11 student went missing. She had spent the day at the caves while rescuers worked to find the boy.
Grant Nicholson, a partner and health and safety lawyer at firm Anthony Harper, said workplace health and safety laws apply to schools as much as they do to any other workplaces.
"In theory, the [board of trustees] can be prosecuted so, charges can be laid under the offence provisions in the Health and Safety Work Act.
"The school is, on conviction, liable to pay a fine and to pay what’s called reparations... for compensation to the family of the student."
In potential legal proceedings, the board of trustees will fall under the acronym PCBU, which stands for a person conducting a business or undertaking under the Health and Safety at Work Act 2015.
"In a legal sense, the responsible party is going to be the board of trustees of the school," Nicholson said.
The board of trustee’s responsibility is to make sure that in all the school’s activities the risks are understood and are properly managed.
Nicholson said he thinks it’s unlikely individuals or staff will be prosecuted.
"My initial impression is that I wouldn’t expect that a teacher is going to end up before the court over this, or the principal for that matter."
The principal and teachers have duties under the Act including not putting yourself in harm’s way and making sure your acts and omissions don’t expose anyone else to risk, Nicholson explained.
"In theory at least, what WorkSafe as the regulator might do, is look to consider the role of the principal or indeed of the teachers who were leading the excursion and making decisions about what they were going to do yesterday and consider whether they had acted reasonably.
"Now, in reality, WorkSafe as a regulator is very clear that they only look to take action against individual workers in circumstances where there is actually a fairly significant departure from expected standards by individuals... so when people have been reckless."
He said WorkSafe doesn’t commonly look to prosecute individual workers for making a mistake in the workplace.
"Instead, what they’ll do is look to identify if there is a systemic failure, and then prosecute the organisation concerned for that systemic failure."
Nicholson said police will also be involved since there had been a death.
"Not because there’s any suggestion of there having been a crime but because when there’s been a death, the coroner has to investigate the core circumstances of that death."
The council will be another PCBU due to the caves being on council land Nicholson said, but with less responsibility than the school.
"If there’s appropriate signage up warning people and that any other reasonable sort of controls that could have been put in place are in place, then no action will be taken."
Whangārei Mayor Vince Cocurullo acknowledged the caves are on council land after the incident, but noted there are warnings across the site.
"We have signs explaining the history, nature and dangers of the caves at the site.
"The caves are not staffed – they are a natural wilderness area open for all to visit.
"We will be taking part to identify any areas for change."
Nicholson acknowledged that often on school trips parents and children have to sign some type of waiver to attend the trip, but he said that it was unlikely that would be relevant.
"Those sorts of waiver forms are more about making sure that there’s informed consent to the risks of the meditative activity, but they don’t really take away any liability."
Andrew Shaw, a managing partner at Lane Neave, agreed it is rare for an individual to be prosecuted, but it can happen in circumstances where they haven’t followed health and safety policy.
"There’s a number of entities who are responsible, you have a board, the school, you have the principals, and then you have the teachers who took them out," he explained.
"For example, the school took every step possible as a PCBU to minimise the risk. But the teachers took actions which would contrary to that, then the teachers may have some responsibility."
A detailed risk assessment plan was completed by the school which acknowledged that caves were "prone to flooding" in heavy rain.
The plans include having an instructor check the weather leading up to the trip and check water levels before the trip if there has been rain.
"Postpone trip if water levels may be too high," the strategy said.
"In this case here, you have to look at the teachers who were there at the cave at the time when the weather event was occurring and decide what training they have.
"What did the risk assessment say, why did they make the decision to go into the cave, knowing the weather conditions knowing the adverse effects that might result?"
Looking at what weather predictions and precautions were in place, and what weather actually resulted would be important, Shaw said.
"If those teachers were there at the time, and they made a proper assessment of the safety of the case, it would be difficult to criticise or even prosecute them if an adverse weather curve event occurred, that was not predicted or was more than expected.
"Then you look at the floods in Auckland, a number of people died. They’re waiting to see if any prosecutions arise out of there. So it’s the same thing here.
"So who should you rely upon to know what it’s going to be like in terms of the adverse weather?"
Prime Minister Chris Hipkins said he has been advised the Ministry of Education has a team supporting the Whangārei Boys’ High School community, and the coroner and WorkSafe are now investigating.
Hipkins said there would be "multiple investigations", including from the Ministry of Education, and expected these to result in areas where policy changes were required.
"Then I’m absolutely confident there’ll be action. I think I think it’s important that that that’s done as independently as possible."
Hipkins said he believed there had been changes in recent decades over how schools approached outdoor education.
"A lot of the more risky practices that we used to see have been removed.
"In many cases, things that schools used to do on the smell of an oily rag, they’re now actually bringing in outside experts to do whereas it used to rely on teacher goodwill. But I think we are constantly needing to look at how that can continue to improve."
