Canyoning deaths 'could have been avoided'

Francis and Jennifer Fernandes say no reparation will bring back their son Floyd who was killed in the canyoning tragedy. Photo / Dean Purcell

"This is a tragedy which should not have occurred and a tragedy which could have been avoided."

The words of Judge Anne Kiernan caused the staff at the centre of the Mangatepopo canyoning tragedy, in which six Auckland teenagers and their teacher drowned, to close their eyes and look to the ground.

Judge Kiernan's criticism was directed at managers of the Sir Edmund Hillary Outdoor Pursuits Centre who appeared in the Auckland District Court yesterday for sentencing on a charge of failing to ensure the safety of their employee, Jodie Sullivan, and one charge of failing to ensure Miss Sullivan's actions or inactions did not harm others on April 15 last year.

Moments later, Judge Kiernan ordered the centre to pay a total of $480,000 - $60,000 to each of the seven families who lost loved ones and $5000 to each of the four survivors within 28 days.

Elim Christian College teacher Tony McClean and students Anthony Mulder, Floyd Fernandes, Natasha Bray, Portia McPhail, Tara Gregory and Tom Hsu all died in the accident.

The centre was also fined $20,000 on each of the two charges, from a maximum fine of $250,000.

Judge Kiernan described the centre's actions as an "obvious and dramatic breach of trust". She said its staff should have closed the upstream gorge walk and obtained weather information from the MetService either by subscribing to a severe storm warning service or checking the website.

"If the defendant had subscribed to the MetService's storm warning service it would have received three warnings before the time the group entered the gorge advising of the severe weather and thunderstorms."

The court heard a fax from the MetService to the centre at 6.45am was missing the word "thunderstorms" from a warning which should have read: "Rain with isolated thunderstorms and poor visibility at times. Rain easing to showers tonight."

The centre's field manager and an employee had discussed the missing word, but had not clarified what it was.

Judge Kiernan said the decision on whether the group should have gone into the gorge should have been made by the experienced field manager, not Miss Sullivan who had just limited knowledge and who had informed the manager of her intentions of taking the group partway into the gorge.

"She was a young instructor with little experience in this area and it was the responsibility of the centre - her employer - to ensure her safety."

Judge Kiernan said the centre should have checked for weather updates and staff should have gone to find the group.

"The ultimate responsibility lay with the defendant through its field manager."

She said that although it had been claimed the severe rainfall that day occurred just once every five years, there was evidence it had occurred every two years.

"In that sense it was not a rare and unusual event."

She said the centre had been at the forefront of outdoor pursuits in New Zealand for 36 years and had a previously unblemished record.

She gave the centre credit for its early guilty plea, its co-operation with the police and Department of Labour investigations, its involvement in the restorative justice process, offers made for reparation and amendments made to its safety and severe weather warning procedures.

Defence counsel Adam Ross expressed condolences to the families while in court.

He said there had been a sudden and "extraordinary" weather event in the gorge that day. Staff significantly more experienced than Miss Sullivan had checked water levels for signs of flooding and no one had predicted the severity of the flood.

Mr Ross emphasised the charitable nature of the trust and said any financial penalty would punish the beneficiaries of the trust - the people of New Zealand.

But Judge Kiernan said the victims and survivors were young and therefore "particularly vulnerable".

The centre needed to be held accountable and similar actions deterred, she said.

The court heard the centre had an operating deficit of more than $139,000 in 2008 and the tragedy had already cost it $400,000.

After court, centre chairman Rupert Wilson said it was too soon to say if its future was in jeopardy.