IN THE DISTRICT COURT

AT WELLINGTON

CRI-2015-085-002309

[2016] NZDC 12806

WORKSAFE NEW ZEALAND

Prosecutor

v

MINISTRY OF SOCIAL DEVELOPMENT

Defendant(s)

[…]

RESERVED JUDGMENT OF CHIEF JUDGE JAN-MARIE DOOGUE

[…]

Executive Summary

[1] At approximately 9:51am on 1 September 2014, Russell John Tully, wearing a balaclava and armed with a loaded shotgun, entered the Ashburton office of Work and Income New Zealand (WINZ), a division of the Ministry of Social Development (“the defendant”). Moving swiftly and deliberately, he shot at four employees, killing two of them. Mr Tully was subsequently found guilty of murder and sentenced by the High Court to a term of imprisonment. [R v Tully [2016] NZHC 1133.]

[2] Both parties have accepted that the events which unfolded in Ashburton on 1 September 2014 have since heightened the risk of client-initiated violence in New Zealand. Security arrangements at many government offices and service providers, including the defendant, have been augmented to account for the increased risk. Furthermore, New Zealand now operates under new health and safety legislation, the Health and Safety at Work Act 2015.

[3] The task before the Court is to assess what security arrangement was appropriate at the defendant’s Ashburton office (“the Ashburton office”) on 1 September 2014. It is crucial to avoid applying the benefit of hindsight. We know now that employees did in fact face a lethal hazard. However, the appropriate question in this case is to determine whether the hazard of client-initiated violence was reasonably predictable, and if so, whether the defendant took all practicable steps to address that hazard, given the knowledge available prior to the incident.

[4] On 4 July 2016, the defendant pleaded guilty to one charge of failing to take all practicable steps to ensure the safety of employees, under ss 6 and 50 of the Health and Safety in Employment Act 1992 (HSEA 1992).

[5] The defendant accepted five of the six practicable steps which the prosecutor (“WorkSafe New Zealand”) alleged it failed to take. Those steps are set out at subparagraphs (b)–(f) of Appendix 1. However, the defendant did not accept alleged practicable step (a), namely: (a) Ensuring there was no physically unrestricted access by clients to the staff working area;

[6] Practicable step (a) was consequently the subject of a disputed facts hearing to determine whether, prior to 1 September 2014, the defendant was required to have in place restrictions on access by clients to the staff working area at the Ashburton office. The prosecution case focussed primarily on the establishment of a physical barrier which would separate clients from employees.

[7] For the reasons set out in this judgment, I am satisfied beyond reasonable doubt that at the Ashburton office on 1 September 2014: (a) there existed a reasonably predictable hazard of client-initiated violence involving manual assaults and assaults involving weapons (other than firearms) on WINZ employees. It was not, however, reasonably predictable at the relevant time that a lone mission-oriented gunman, such as Mr Tully, would attack Ashburton staff;

(b) the implementation of a physical barrier to delay violent clients was a reasonably practicable step open to the defendant prior to 1 September 2014;

(c) an appropriate physical barrier would have been a secured desk at the point of interaction between a client and a case manager, which would delay a client attempting to reach around or over the desk. The delay

would allow an employee to utilise a rapid route of egress to a safe zone.

[8] Under the HSEA 1992 it is not necessary for the prosecution to prove a causal link between the failure to take a practicable step and the harm suffered, although the issue of causation is of significance to sentencing. I am not persuaded beyond reasonable doubt that a physical barrier would have prevented or minimised the particular harm caused by Mr Tully.

[9] In making the findings at paragraph [7](a), I note three important points. First, where a general reasonably predictable hazard can be identified, an organisation such as the defendant must take all reasonably practicable steps to address it. Even where harm resulting from a hazard cannot be predicted as manifesting at a particular time or place, the defendant may nevertheless have an obligation to take practicable steps to address that harm. An important purpose of security planning is to prepare for the moment where a general risk may manifest as a specific violent event.

[10] Secondly, the fact that an organisation carries out a large number of interactions, only a relatively small proportion of which are violent, does not bring the hazard below the scope of reasonable predictability. In cases involving large organisations, even if only a small proportion of interactions carry a risk of violence, this may give rise to significant harm.

[11] Thirdly, I find that “situational violence” — a common feature of client-initiated violence — has the potential to arise from staff-client interactions in any location. In respect of national organisations where client-initiated violence is identified as a reasonably predictable hazard, it is important that it be considered on a nationwide basis and, where appropriate, with reference to international trends and patterns. This nationwide underlying risk may then be considered together with local and temporal variations.

[12] The findings contained in this judgment are based on a detailed examination of the experiences of, and hazards faced by, the defendant’s employees at the

material time. As such, they are not automatically applicable to other government departments. Each organisation will have its own unique experiences, which may require different means of predicting and responding to known hazards.

Judgment: 2016NZDC12806WorksafeNewZealandvMinistryofSocialDevelopment.pdf

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