The parents of a toddler who was killed by a falling gate at an Auckland kohanga reo want accountability over their son's death and are considering a civil lawsuit after police decided not to lay charges.
Louis Schmidt-Peke, 3, was playing "What's the time, Mr Wolf" with his friends in
the enclosed carpark of the Hoani Waititi Marae kohanga reo when the 100kg metal gate fell and struck him on the head in June 2007. He died instantly.
No criminal charges were laid after lengthy police and Department of Labour investigations. A recent coroner's inquest also did not make a firm conclusion as to who was culpable for the death.
Louis' parents, Helen Peke and Louis Schmidt, confirmed that they were considering civil action as "justice had not been done" but declined to comment further so as not to jeopardise the case.
The Weekend Herald has obtained a copy of the May report by coroner Gordon Matenga, released nearly two years after Louis was killed.
The toddler was one of 10 pre-schoolers who had been painting at the kohanga reo and it was decided to play "What's the time, Mr Wolf" so the mess could be cleaned up.
Two of the supervising adults went to shut the two carpark gates to keep the children safe as they ran around.
Both say the gates were closed; Mr Matenga concluded the gate that fell on Louis must have been open because that is the only way it could fall. He cited the evidence of witness Raewyn Adams, who was walking her dog in Parrs Park across from the kohanga reo. She said the gates were open.
"As I looked up I saw one of the steel gates falling inwards ... as the gate fell, it barely missed two of the children and landed on the third child, a small boy who was facing away from the gate towards the play centre."
Ms Adams went on to say: "The kids were just playing, you know, they were doing that 'let's run to the gate and touch it' then run away."
The three children jarred the gate when they touched it, before running away, said Mr Matenga. "The gate has then fallen inwards, with its fatal consequences."
The coroner then turned his attention to how the 100kg gate could possibly be so unsafe as to topple over.
The green steel fence was manufactured by Town and Around Fence and Gate in Hamilton and installed in May 2006 by a subcontractor, who withdrew from the job partway through. A second subcontractor, Sean James of Absolut Fence and Landscape, was hired to finish the job.
The gates ran on two wheels along a fixed track. Both had extended stiles, which would normally hit the overhead guidepost - or "up and over" - to stop the gate from travelling off the track.
However, when police and forensic scientist Gerhard Wevers examined the gate that killed Louis, they found the stiles had been cut off.
The top surfaces of the end posts were not painted, not cut square and marked, characteristic of a cutting tool like an angle grinder. In the light of this, Mr Wevers said the posts had been cut after manufacture.
The man who fitted the gates, Mr James, attended the inquest and denied cutting off the extended stiles.
Records from the manufacturer show the extended stiles of both gates measured 1940mm in height, 2020mm with the wheels. Police measured the distance between the wheel track and the bottom of the guidepost, which the gate would hit to stop, as 2080mm for the gate which fell on Louis and 2050mm for the second gate.
"It was found that the extended stiles were too short to hit the 'up and over' [guidepost]. This would have made them redundant and, as suggested by the police, an unsightly addition to the gate," said Mr Matenga.
"The police suggest that Mr James, who is paid per job and therefore is motivated to complete the job without interruptions, would have incurred considerable further costs to correct the error."
Either the gates would have to be remade with the "up and over" remade, or by digging the post further into the ground, or cutting a section off the top, said Mr Matenga.
"The police then suggest that it was Mr James who cut the extended stiles on both ends of each gate, replaced the caps and then installed each gate using the Tek screw drilled into the gate track as a stopping mechanism."
The police found the screws had been severed, leaving nothing to stop the gate moving past the guidepost into what Mr Matenga called a "freefall position".
Mr James denied the allegation but Mr Matenga said: "To put it bluntly, the evidence does not support Mr James' version of the events."
Mr James' wife declined to comment to the Weekend Herald yesterday.
While Mr Matenga questioned the fitting of the faulty gates, he also pointed out that trustees of the Hoani Waititi Marae failed to take action when problems became apparent.
Both gates had fallen and been slid back into place before the fatal accident. After one such incident, kaumatua Barry Renata wired a piece of metal to the second gate to stop it from travelling too far on the track and falling over.
"Sadly, it did not occur to him to do the same to the other gate and neither did he report this fault to the marae management," Mr Matenga said.
He said there was "ample evidence" for marae trustees and kohanga management that there were problems with the gates coming off their tracks.
"Something should have been done about this, but the issue was not addressed until after this fatal accident," said Mr Matenga.
Dr Pita Sharples, co-leader of the Maori Party and MP for Tamaki Makaurau, appeared on behalf of the board of trustees for the Hoani Waititi Marae. He assured the coroner that procedures were now in place to report serious incidents and act on them.
"I am satisfied that the steps taken will significantly reduce the chance of a similar death happening in the future," said Mr Matenga.
Bruce Young, the lawyer for the Schmidt-Peke family, asked Mr Matenga to recommend that the police or Department of Labour revisit the decision not to lay charges against any person or entity.
Mr Matenga said the police had already given careful consideration to criminal culpability and recommendation could not be made for prosecution, "a reflection of the very high burden of proof in criminal cases".
Detective Sergeant Peter Litherland, of the Waitemata CIB, said police investigated the death of Louis for more than six months.
No one person or entity could be singled out for prosecution as a number of people had varying degrees of culpability, Mr Litherland said.
"There were a lot of people who could have altered the course of events but didn't."
Louis Schmidt-Peke, 3, was playing with friends when he died. Photo / Herald on Sunday
The parents of a toddler who was killed by a falling gate at an Auckland kohanga reo want accountability over their son's death and are considering a civil lawsuit after police decided not to lay charges.
Louis Schmidt-Peke, 3, was playing "What's the time, Mr Wolf" with his friends in
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