By Phil Pennington of RNZ
WorkSafe has found shortcomings at Fire and Emergency New Zealand (Fenz) over how two volunteer firefighters died in a landslide in Cyclone Gabrielle.
But it will not prosecute Fenz, nor release its report to the public, saying the coroner does not want it to – not yet anyway.
Dave van Zwanenberg and Craig Stevens were preparing to dig a trench to protect a house that had no one in it, when the landslide hit the house – and them – at Muriwai, during Cyclone Gabrielle in February 2023.
The emergency responder’s own internal investigation 10 months ago was widely publicised. It found multiple failings by Fenz at the most basic level left the two men unaware of the “imminent and catastrophic” risk they faced that night.
It identified “inadequate” procedures, planning, risk management and training around landslides.
The only external independent investigation was done by WorkSafe (the independent coronial inquiry is also underway). It was completed so quietly earlier this year that even after it was finished, other authorities were wondering if it had begun.
“Is an external review into the Muriwai incident being conducted?” the auditor-general said in a February 28 report outlining what MPs on a select committee should ask Fenz.
Yet five days earlier, Fenz had said in an online post (which RNZ could not find any media reports on): “Following the deaths of Dave van Zwanenberg and Craig Stevens last February, WorkSafe investigated this tragedy under the Health and Safety at Work Act 2015. We have been advised that WorkSafe will not be taking enforcement action against Fenz”.
After seeing the mention by the auditor-general a few days ago, on May 8, RNZ asked WorkSafe for its report.
“The WorkSafe investigation into the deaths is complete and found shortcomings, including in risk management,” it told RNZ.
“However, we are reassured by improvements made to date” resulting from Fenz’s own internal review, WorkSafe added.
It turned RNZ’s request into an Official Information Act file, which can take at least five weeks to answer. Fenz would not release the report either, it said.
After further queries, on May 10 the agency said: “WorkSafe interacted with the families of the firefighters, who told us they were not in favour of a prosecution. WorkSafe considered their views, and ultimately the public interest test of the solicitor-general’s prosecution guidelines was not met, so we did not prosecute”.
The guidelines state prosecutions should only begin if there was a “reasonable prospect of conviction” and it was in the public interest.
WorkSafe has faced regular criticism across many cases from lawyers, victims’ families and even company directors, that it is slow to prosecute and only takes “sure-thing” cases.
It in turn defends itself as being careful and thorough. It takes relatively few prosecutions and wins most of them, data shows.
Four days later, on May 14, WorkSafe told RNZ it had “consulted with the coroner, who has advised that release of the report at this stage would impact and prejudice the inquiry”.
“WorkSafe has taken into account the views of the coroner in making its decision on your request... making the report available would be likely to prejudice the maintenance of the law.”
The coronial process is not a trial and is not about finding fault, but determining facts, identifying causes and recommending what to do about them.
WorkSafe has a 12-month window to investigate and prosecute, but a coroner can suggest – not demand – the agency reopen an investigation.
Workplace Relations and Safety Minister Brooke van Velden said WorkSafe was following both the coronial process and considering people’s privacy under Official Information Act law.
“The minister is satisfied that WorkSafe will be working appropriately with Fire and Emergency New Zealand to ensure all lessons from this incident are acted on,” her office said in a statement.
Fenz’s 38-page internal report into Muriwai in July 2023 said its own risk management systems did not identify landslides as a hazard that could harm its firefighters.
“This resulted in a lack of landslide-related procedures and training for firefighters. The Muriwai firefighters knew about Muriwai’s general susceptibility to landslides, but did not recognise the warning signs that indicated an imminent landslide threat,” it said.
RNZ established in August 2023 – using the Official Information Act – that the only substantial document firefighters had about landslide risks prior to the Muriwai slip was a 10-year-old manual from Sweden.
This was despite repeated references in Fenz strategy documents for several years about having to prepare to respond to the growing threats from climate change-induced storms.
In mid-2023, around the time Fenz’s Muriwai findings came out, the New Zealand Qualifications Authority (NZQA) reported back on Fenz’s government training establishment (GTE) programme for hundreds of volunteer firefighters, and downgraded it, saying it was “insufficiently resourced and supported”.
This was a turnaround from 2018, when it was rated as OK. The 2023 downgrade forced Fenz to cut a deal with NZQA just to be able to keep on enrolling trainees.
It allowed that to continue when normally enrolment would be stopped “as it is important that New Zealand continues to have a pipeline of trained and qualified firefighters”, NZQA told RNZ in a statement recently, outlining how it was currently monitoring the training, which appeared to be improving.
Fenz issued a training module on landslides in December 2023.
It said in its February 2024 online post that it would work with WorkSafe “to go through their investigation and decision-making process”.
“We are a close whānau at Fire and Emergency and this event continues to be a tragic reminder of the risks you all can be exposed to every day,” it said.
“Dave and Craig’s service to their community during the most challenging conditions will not be forgotten, and the lessons we take from this will shape our organisation moving forward.”
WorkSafe listed for RNZ what it said Fenz has done to improve to date. This included beginning a review of its critical risk management, issuing a national safety notice to all firefighters about slips and developing training in areas prone to slips and quakes.
As for its GTE training course for volunteer firefighters, NZQA said that recent improvements included new assessment materials and assessor training, a new learning development and quality control team, and new quality management system and internal moderation procedures.
“While the steps... are positive, it is too soon to draw conclusions about their effectiveness,” the Qualifications Authority said. These would be fully evaluated this October.
Much of the South Island is set to plunge below 0C tonight and tomorrow.