Tony Ward-Holmes examines some of the issues arising from the drowning of a polytechnic student on the Buller in 2002, including the role of the MSA and expert advice. Thanks to Brett Whiteley, Graham Charles, Pip Lynch and Dave Moore for input. Brett Whiteley would like to thank NZRCA for the support he has received during this time, particularly Janet Nicol and Robin Rutter-Baumann.
In January 2002, Tim Jamieson, a student on an instructed Tai Poutini Polytechnic trip, was drowned after pinning on a log in Rodeo rapid on the Lyell Creek section of the Buller. The MSA have jurisdiction for all accidents involving water-borne craft, including kayaks on rivers, and so investigated the accident using one of their usual marine accident investigators. One of the conclusions of the resulting report was that one of the instructors that day, Brett Whiteley, should be
severely censured. The Police opened a case investigating laying charges of criminal nuisance against Brett, who instructed the group in which Tim was paddling, and against Peter Kettering who was the chief instructor that day. This case was open for two and a half years, however after expert opinion was sought overseas the Police decided that no charges would be laid.
Currently a Coroners Inquest is being conducted in Nelson. The inquest has been very positive for many involved and has helped to resolve some misconceptions. The media has painted the inquest in a very different light however, with the Nelson Mail and other newspapers around the country leading with a headline of
Instructors close ranks after kayak death and printing sensational but unsubstantiated quotes such as
No one had been willing to speak to police about the accident for fear it would jeopardise their livelihood.
Nothing of the sort occurred. In fact the Police approached a few organisations, including the NZRCA, for advice on who they should employ to review the MSA report and the evidence against Brett and Peter. The advice of NZRCA Safety Officer Glenn Murdoch was that there was probably no such person in New Zealand due to conflicts of interest, and that they should look offshore. The police eventually found two highly qualified expert witnesses, Marcus Bailey (Head inspector of the UK Adventure Activities Licensing Authority) and Charlie Walbridge (a director and former safety officer for the American Whitewater Affiliation).
Accidents such as this are always tragic for all participants, family and friends, however this particular accident has been responsible for considerable controversy in the kayaking and instruction worlds. This article will not delve into many of the details of the accident. They have been considered elsewhere, and the jury is no longer out, in fact it was not summonsed at all. There are wider issues that still need discussing, however, such as the role of the MSA in the accident, and the liability of people recreating in the outdoors.
Role of the MSA
Subsequent events have proven the MSA report to be seriously flawed. Both overseas experts employed by the Police strongly disagreed with the findings of the MSA report. The report was not useful in its recommendations to avoid future such accidents, and was arguably irresponsible in its opinions and recommendations.
NZOIA instructor Graham Charles was employed as a consultant for this report by the MSA but was allowed little input by the investigator in this instance and disagreed with many of the recommendations. On the question of culpability, Graham agreed that Brett had made an error of judgement and that he should be censured. However Graham commented,
we hadn't found any grounds for negligence or any other 'criminal' thing... Brett was to be censured by his representative body - NZOIA and that was it - no more. This critical distinction did not appear in the published report.
NZRCA are extremely disappointed by the investigator's attitude to expert advice as we have spent years attempting to convince MSA that whitewater qualifications are required to investigate a whitewater accident. They certainly would not appoint a kayak instructor to investigate an oil tanker spillage. A chronic problem with the MSA is that they have jurisdiction over whitewater kayaking, yet they have no knowledge of the subject, and often refuse to seek any.
This has led to the current trifecta of fiascos: Rule 91 still effectively makes whitewater paddling illegal through its buoyancy aid and navigation provisions; MSA have been pressuring EBOP (Environment Bay of Plenty) to remove not only Rock A but Rock B as well from the Rangitaiki River; and the police case against Brett Whiteley and Peter Kettering.
Progress has been made on the investigator front at least, as NZIOA assessor Ian Logie has been employed for the last two whitewater accident reports, ie: the drownings on the Waikaia and the Crooked. Our last communication from MSA is that while they will endeavour to use experts in future cases they cannot guarantee to do so due to budget constraints.
Liability in the outdoors
The MSA report assumes an instructor has absolute responsibility for a student, and that if an accident happens, it must therefore be the instructor's fault. On this point one of the overseas experts, Marcus Bailey, made the following comments:
Tim was well into the strange transitional phase between being a student and being a leader which exists with leader training. One cannot expect to stop being a guided and instructed student one day and become an aware self reliant leader the next.
Marcus's comments illustrate the paradox nicely: how can you instruct in a risky environment, without the students being exposed to risk? And how much risk should you attempt to remove, if the students are themselves going on to become instructors, or even just paddle in a non-instructed environment where they must make their own decisions?
It is not a black and white issue. At one extreme might be something like the sinking of a commercial jet boat, where the operator has not ensured all clients are wearing life jackets and one such client drowns. Maritime law would be broken in such a case, and criminal nuisance may not be the most serious charge faced.
At another extreme is the likes of guiding Mt Everest. If Rob Hall had survived and Doug Hansen died in 1996, would Rob Hall have been prosecuted for criminal nuisance? Possibly a moot question as it was not in NZ jurisdiction. How about any of the three guides in the avalanche on Mt Tasman, had they survived? Most people would say not. You cannot expect to recreate in the outdoors without accepting some level of risk. If you want to avoid that risk, you can stay home.
Paddling is generally not as dangerous as mountaineering, however risk is still inherent to the activity. In his comments on the MSA report, Charlie Warlbridge wrote,
Whitewater rivers are natural features of the landscape, not engineered thrill rides. They contain many hazards, both obvious and unseen. These dangers can never be fully catalogued.
Authorities need to recognise that many outdoors activities are inherently risky, and that "Not taking reasonable care to prevent a foreseeable harm to a person" (which is how Standards NZ defines negligence in their draft Risk Management Guide) is an inappropriate definition of negligence in many contexts, such as whitewater paddling. Currently the wording of the criminal nuisance law is too harsh for situations where the participants voluntarily engage in activities that are inherently risky. Organisations such as the Police, MSA, OSH, Coroners and the Government need to understand this. Fortunately this case did not get to court but the process still took two and half years to resolve and was at considerable cost to those involved.
Arguably mistakes were made in the Buller incident, both beforehand and on the day. Instructors, organisers and the like are human and make human mistakes. In this case, expert opinion was that any mistakes that may have occurred did not constitute criminal negligence; they were simply oversights, error of judgements, such as happens to all of us in paddling but which we are normally lucky enough to get away with.
Marcus Bailie concluded,
"I strongly disagree with the recommendation that Brett be severely censured for his failure to scout the rapid carefully beforehand and for failing to lead the students down the rapid. If this is seen as a serious fault then New Zealand either will not have a future generation of white water leaders and guides, or worse, the new generation of leaders will have no experience of leading.
Relevance to clubs and individual paddlers
So far most of the discussion has been relevant to professional instruction. The NZRCA represents many clubs and individual paddlers throughout the country. Many instructors happen to be members, however the NZRCA does not directly represent instructor's interests. So is this case relevant to canoe clubs, trip leaders and volunteer instructors?
According to advice to the NZRCA from SPARC (Sports and Recreation NZ), if a club or person takes any money from trip participants, eg: gear hireage, paying a club instructor's petrol money, then money has changed hands and so the same rules apply as for any commercial enterprise. Their solution is to advise that you document all possible hazards, and all possible responses to the hazards, and to document your documentation in case someone wants to investigate you.
What most of the NZRCA executive think of SPARC's advice is not printable. Fortunately this case indicates that the level of care expected by law does vary with the situation. It is true of course there is a duty of care involved. Club instructors and trip leaders do need to take all reasonable steps to prevent harm, but their liability if things go wrong will depend on the circumstances and participants.
A natural hazard?
One specific detail of the Buller accident should be mentioned as it does not appear anywhere in the MSA report. A contributing factor is that the log in question wasn't there by accident. It was placed there by Transit NZ, apparently in an effort to try to protect the hillside and highway above from being undermined in times of high water. Normally a tree (such as the one which used to be in 'One Night Stand' rapid just upstream) would be easily visible from above. In this case it was not, as the body of the tree was well buried in the boulder bank and all branches were cut off, leaving just the stump of one fork which was only exposed in times of unusually low water.
Unfortunately even then it was difficult to see as it was downstream of a rock, in the main flow. This is not common; usually a tree would be on the outside of a bend or on the upstream side of a rock. The tree was quietly removed by Transit NZ not long after the accident, as reported in the NZRCA website forums. Organisations altering riverbeds should consult with river users before making such alterations. I would have thought the RMA would require them to do so.
Where to from here?
In terms of the accident itself:
- In this specific case the hazard was hidden, only rarely exposed and not well known. Rodeo is not a rapid people would normally scout. Arguably, knowledge of this hazard should have been better communicated amongst all paddlers, including private paddlers as well as instructors. If you notice an unusual hazard such as this, take note of it for your future trips and consider warning others, eg: by posting to the rivers website forum.
Other actions which can reduce the risk of accidents in general include:
- Check the NZRCA website for river hazards. Go to www.rivers.org.nz and click on the "Access, Touring and Hazards" forum. While NZRCA agrees with Charlie Walbridge's comment on it being impossible to catalog all hazards, it is a good idea to check if someone has found a hazard significant enough to warn people about.
- Take a safety and/or rescue course. Courses are not just about rescue, they teach you to think about rescue scenarios when you're paddling. Prevention is better than cure. Next time you are assessing if you should run that difficult line, and thinking about where you might end up if you blow it, also think about how people can help you. If they can't get to you, and you're not 99% (or whatever) confident of getting it right, maybe you should wait another day.
- Remember, paddling means risk. Risk is a numbers game. Treat it as such. Don't ask yourself "will I or won't I make the move?" That is too black and white. Instead ask yourself how many times out of 100 you will make it. And how many times out of 100 you'll survive if you don't. Then decide whether to scout, run, or walk that rapid.
In terms of liability:
- While the NZRCA believes the procedures recommended by SPARC are too bureaucratic for most clubs, it is worth thinking about some kind of operations manual for club trips, instruction courses and events. The objective should not be to provide for accident investigators though. The objective is to identify all measures which reasonably would need to be taken to fulfill your duty of care.
- Clubs could think about waivers. While waivers do not serve to absolve you from liability and clubs should not attempt to use them as such, a well worded waiver may help educate new members of the inherent risks of paddling.
- As Dr. Pip Lynch pointed out in the Criminal Nuisance Prosecutions article last issue, people can be convicted of Criminal Nuisance if they are found to be guilty of "simple negligence", rather than "gross negligence". All participants and organisations in outdoor activities should consider lobbying for a law change to require "gross negligence". For information on how to do this, contact Pip on