The Whittall prosecution

December 13th, 2013 at 11:00 am by David Farrar

Stuff reports:

West-Coast Tasman MP Damien O’Connor also said the settlement looked like a “stitch-up”.

“The families have said they want justice more than money and this tragedy will have no end until justice is seen to be done,” he said.

Bridges denied yesterday’s announcement left New Zealand’s justice system a “laughing stock”.

“I disagree with that. It was a decision based on legal principles, and determined by the Ministry after clear legal advice from the crown solicitor and the solicitor general.”

He said he was advised of the decision only this week, after the decision had already been made. 

“I had no involvement in it, and that’s as it should be. I think politicians shouldn’t be involved in deciding whether or not to prosecute individuals.”

The decision was made after assessing the level of evidence available and whether or not it was in the public interest, Bridges said.

“In terms of the evidential test, the factors taken into account there included witnesses not being prepared to make themselves available, [and] contest between experts and other pre-trial issues. 

“And then in terms of the public interest, the assessment was that it wasn’t in the public interest to continue with a long, costly trial, with a low probability of success.”

One can sympathise with the families that they wanted to see a conviction in court. But if a trial had a low probability of a conviction, I’m not sure they’d be much happier having to sit through a five month trial, and have Whittall almost certainly found not guilty.

It is worth noting also that the charges Whittall faced could not have resulted in imprisonment. The only thing that could have happened was a fine and the stigma of conviction.

Whether or not he has a formal conviction, I doubt Whittall will ever be employed in the mining industry again.  In fact he may never again be employed by anyone. The stigma of a conviction would not change his employment prospects.

Whittall was hailed as a hero (including by me) for the way he fronted up and openly communicated during the immediate post-explosion stage. But I said at the time:

But he would know, that admiration for his post-explosion performance, will not protect him if it transpires that  Coal has some culpability for what happened. Admiration for fronting up does not remove accountability and responsibility.

The Royal Commission clearly found that there were numerous failings by Pike River, and Whittall. Note however he was mine manager, not CEO, for most of the time. If a prosecution of Whittall had a reasonable chance of success, then it should have continued. But it is very clear from what MBIE have said that their prosecution would have failed. The Judge all but said so herself.

The Herald notes:

Judge Jane Farish was doubtless on the mark when she said yesterday that the likelihood of a prosecution of was “extremely low” and the case may never have reached trial. As such, it was right for the Ministry of Business, Innovation and Employment to drop the 12 health and safety charges against the former chief executive. 

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52 Responses to “The Whittall prosecution”

  1. thePeoplesFlag (102 comments) says:

    Hidden due to low comment rating. Click here to see.

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  2. Rich Prick (1,323 comments) says:

    I just knew it was all John Key’s fault. He had a finger in 9/11 too, don’t ya know.

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  3. metcalph (1,293 comments) says:

    The Herald editorial was bollocked by a pointless complaint about the source of the money being paid to the families. In light of the fuss a few weeks ago, do they want the money or not?

    And for the edification of the people’s snotrag, murder requires a specific set of intents, none of which were present at Pike River. For the wider crime of manslaughter, a specific set of actions is required, none of which were performed by Peter Whittall.

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  4. wikiriwhis business (3,302 comments) says:

    They don’t call him the smiling assassin for nothing

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  5. peterwn (2,938 comments) says:

    Wonder if Graham McCready will take a look at this. He would be unlikely to proceed because:
    1. The complexity and resources required would be far beyond his capability.
    2. A public prosecution was attempted (unlike the other two cases Graham prosecuted).
    3. It was a Crown Law recommendation not to proceed, so Graham would have no chance of starting a private prosecution in the hope Crown law would pick it up.

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  6. metcalph (1,293 comments) says:

    The Royal Commission clearly found that there were numerous failings by Pike River, and Whittall.

    I’ve actually read the Royal Commission Report and I don’t recall any numerous failings by Peter Whittall himself. Care to elaborate?

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  7. RRM (8,994 comments) says:

    So if you’re a big enough industrial concern, why would you make any effort / expenditure at all to maintain high safety standards?

    In the event that something bad ever happens, (even the kind of disaster where 30 guys die) as long as you’ve got a few Mil to distribute as compensation bribes to the relatives, you’ll be sweet.

    It’s not anyone’s fault.

    It’s the company

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  8. wikiriwhis business (3,302 comments) says:

    It was Whittalls way or the highway with no income

    29 lives were lost for that reason when there’s nowhere to turn.

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  9. metcalph (1,293 comments) says:

    Wonder if Graham McCready will take a look at this.

    Threatening 29 manslaughter charges according to Twitter.

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  10. m@tt (535 comments) says:

    No matter how you try and explain it, appearance is everything, and the appearance here is that you can buy your way out if you have enough cash.

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  11. jackinabox (352 comments) says:

    “2. A public prosecution was attempted (unlike the other two cases Graham prosecuted).

    3. It was a Crown Law recommendation not to proceed, so Graham would have no chance of starting a private prosecution in the hope Crown law would pick it up.”

    You’re naïve peterwyn, Crown Law fucks things up on a regular basis, incompetence or corruption, take your pick.

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  12. thePeoplesFlag (102 comments) says:

    The royal commission called for compensation to be paid. “Not I!” came the cry from the businesses responsible for these corporate murders. The government was asked to pay, and recoup the money “Not I” cried the PM and the responsible minister. The public didn’t like that, rightly seeing immoral scumbags in business being allowed to get off scot free and rightly being cynical a government that falls over itself to fund it’s corporate cronies from the taxpayers pocket suddenly crying poverty.

    I suppose Jason Ede first tried to feed smears to Cameron Slater to take the heat of his boss, and when that failed they did a deal with Pike River coal that lets them walk away with no one held accountable for mass murder in return for some blood money. It gets Key off the hook. It Pike River Coal/Whittall off the hook. Oh yes and it makes sure 29 dead men get no justice.

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  13. srylands (301 comments) says:

    “In John Key”s new Zealand, you can murder 29 people and pay a fine to get off.”

    Are you a wind up? Or do comments like this reflect your thought processes on a daily basis? Do you actually say things like this to people in your real life? How does that work out for you?

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  14. metcalph (1,293 comments) says:

    The royal commission called for compensation to be paid.

    Wrong on multiple counts. A court, not the Royal Commission, fined the company $3.41 million on the condition that it went to the family. But the company was bankrupt and couldn’t pay. The shareholders have no obligation to pay as Pike River was a limited liability company and the taxpayer shouldn’t pay as the fine was not theirs to pay. The money from the company directors is the next best thing and I fail to see why you and others should suddenly be screaming about how the money is tainted.

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  15. flipper (3,273 comments) says:

    As I said in the GD….

    “Some things make me grumpy. Some leave me speechless, while others leave me with the feeling that many media outlets, circa 2013/14, would abandon the age old principles that underpin our system of justice in favour of a headline.

    So, with apologies in advance to those who lost their lives at Pike River, RANT MODE ON:

    “The main stream media have reached a new nadir in referring to the Pike River mine prosecution withdrawal and the $110,000 solatiums for each family, as “blood money”.
    This description is a gross misrepresentation, if not a deliberate lie.
    The families of the Pike River disaster have already received $8 million via charitable donations, $ 5 million via ACC, and have $15 million further ACC payments “in the bank” to come. [Add to this the $3,190,000 now accepted by the Court] This amounts to $1,075,517 for each of the persons lost – far more than paid in respect of any other tragedy (I suspect). ACC is far from perfect or equitable in many circumstances. But absent ACC the Workers Compensation (as it was known) Act would still be in its very early litigation stages, with no likelihood of an immediate settlement (for better or worse).
    The prosecution of Whittall was always going to fail because the evidential link could never be made between criminality and cause. Health and safety trial aspects appear to have been compromised by Labour Department culpability.
    It is time that Monk and his fellow blood suckers took note of the fact that it is they who are involved in “blood money” – not the previous mine owners, nor directors, nor Whittall.
    Let it go. New Zealand has been generous on this issue. But with this latest Monk charade, so far as I am concerned, never again.”
    … RANT MODE OFF !
    Question: Where does this leave Cunners and his “promise” to get shareholders to pay????…”

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  16. david (2,482 comments) says:

    The sad thing is that Whittall might have been better off facing charges and being found not guilty. That would have caused The Peoples Flag to grind his teeth down to the nub but Whittall would have a lesser stigma attached to his name in the wider community that can actually see past their bigotry. It would enhance his ability to find employment also and from what I saw after the explosions, he appears to be a competent Manager.

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  17. Bovver (133 comments) says:

    “In John Key”s New Zealand, you can murder 29 people and pay a fine to get off.”

    That’s right we live in an absolute monarchy or is it a totalitarian dictatorship where John Key is responsible for everything that happens in New Zealand, oh wait…..

    You sir are a tool of the highest order, take you Fabian sentiments and fuck off.

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  18. Jaffa (67 comments) says:

    The people who blew the mine up, are still in it.

    Covering up the gas sensors, and taking cigarettes, matches and lighters in, may have helped.

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  19. wikiriwhis business (3,302 comments) says:

    ‘take you Fabian sentiments and fuck off.’

    J Key is a fabian Keysnian economist socialist. Everyone in every western parliament is if they want to keep in power.

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  20. peterwn (2,938 comments) says:

    Looks like I was wrong. See:
    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11171948

    But I doubt he will have the ‘dream run’ as he had with John Banks.

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  21. flipper (3,273 comments) says:

    Someone with some knowledge of such matters reminded me this morning that talk of recovering bodies is nonsense.

    Given the heat generated by the explosions and subsequent fires, we are at best talking about remains, (if any).

    I have some sympathy for Jaffa’s view, but it is like the allegations against Whittall, speculative.

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  22. metcalph (1,293 comments) says:

    Flipper

    The behaviours described by Jaffa were reported in the Royal Commission as a probable cause of the disaster. That goes beyond mere speculation.

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  23. Honeybadger (145 comments) says:

    Totally off topic here, but would someone be kind enough to post the url for the page where I can ‘confirm follow’. I cannot access it from my email for some reason, the email just locks up and I cant find it anywhere else. Appreciate it muchly

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  24. flipper (3,273 comments) says:

    metcalph..

    Good point on the breaking of rules.

    My point is that there is speculation about a causal link. No?

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  25. metcalph (1,293 comments) says:

    To call the link between the mine safety breaches and the mine explosion “speculation” is a misuse of the term, I feel. The mine safety rules are there to prevent an explosion in the mine (among other things). If there is a documented history of mine safety rules followed by an explosion in the mine, then the probability is high that the mine safety breaches caused the explosion. It may be that the mind safety breaches did not cause the explosion but in order for this to be a reasonable inference (against the nexus of mine safety breaches and mine explosion), one would have to outline the circumstances in which a mine explosion occured but a the mind safety breaches did not contribute to the disaster. Until that is done, the case that the mine safety breaches were not responsible for the mine explosion should be considered “speculation” rather than the converse case.

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  26. Sofia (784 comments) says:

    At one stage there were reports of cigarette butts found in places they shouldn’t have been, and gas detectors that had been disabled – reports which seem to have disappeared and not resurfaced.
    Since the mine has never been re-entered and therefore remains unexamined, there can be no exclusion of the possibility that one or more of the 29 dead miners caused the explosion, or does some convention of respect rule out that chance?

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  27. Paulus (2,298 comments) says:

    Surely the Mine’s Health & Safety Manager was responsible for seeing that the Safety Rules were adhered to ?

    Whilst sad that he lost one son, and narrowly the other got out, he complained that Whittall was responsible, from his Wellington Office.

    This complaint is along with his boozy publican mate, who also lost a son, in a dangerous but well paid job, who does not speak for ALL miner’s families – they are still on a publicity run with every thought in the media.
    They love to be in the headlines.
    Nobody can say that the miner’s contributory negligence had a part to play, because those involved cannot answer the questions of a possible contributory fault, as posed by the Royal Commission.

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  28. kowtow (6,717 comments) says:

    Tell ya what,if you’re really interested take 7 minutes and 21 seconds to listen to Geoffrey Podger from the Ministry destroy Mary Wilson last night on Radio Aotearoa,Checkpoint.

    Doesn’t happen often.

    http://www.radionz.co.nz/national/programmes/checkpoint

    See Minisrty Responds.at 1716.

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  29. Sofia (784 comments) says:

    Nobody can say that the miner’s contributory negligence had a part to play, because those involved cannot answer the questions of a possible contributory fault, as posed by the Royal Commission.

    Nor are they eliminated without an examination of the mine, which may still be inconclusive.

    Whittall was appointed CEO of Pike River Coal, 2 October 2010.
    Between then and the disaster on19 November 2010, did the mine deteriorate to being an utter death trap – in just under 7 weeks?

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  30. Morgy (167 comments) says:

    I am happy for accountability. So why aren’t we also questioning why the union didn’t pull their workers out and why isn’t Neville Rockhouse, the H&S manager at the time put under the grill? What about the DOL manager who did nothing about it? Why do we only get the political element of it? People on the ground/in the mine/in the office made the mistakes not a person in the Beehive. The sooner we get a culture of personal responsibility (i.e you are paid to do a job) the better rather than this cop out of passing the buck. Own up to your own failings….boardroom down to the front line management.

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  31. dave_c_ (205 comments) says:

    So – Not one individual (other than the shell of a company) has been held accountable for anything ! Bah

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  32. Komata (971 comments) says:

    I have asked this question before, but to date have received no answers, so perhaps someone might be able to help:

    As I understand the situation, there are the ‘remains’ (in some form or other) of 29 people still entombed within the mine.

    These are apparently located at a point AT LEAST 1 kilometre in from the adit portal (the mine entrance).

    The mine has been constructively sealed for the past two years.

    The mine is what is known as a ‘Firey’ mine, a term which indicates a very high level of methane is generated from the coal it contains.

    After two years of being almost hermetically sealed, the concentration of Methane will be inevitably VERY high.

    For their own reasons (which I won’t go into here), certain individuals (no names) have publiclly indicated that they wish to mount an ‘expedition’ to enter the mine and AT LEAST walk to the point where it is believed the ‘remains’ may be located.

    They are therefore DELIBERATELY CHOOSING to put themselves ‘in harms way’.

    My question is this: Given these known-circumstances, WHAT WILL HAPPEN IF THE MINE EXPLODES AND THESE INDIVIDUALS ARE KILLED/INJURED?

    Will their relatives EXPECT / DEMAND that these individuals are in turn rescued (despite the foolishness of their actions) and incur more expense from the Government in doing so?

    As it seems distinctly possible, that this could be the end-result, perhaps someone can answer and advise?

    Thanks.

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  33. Richard Hurst (713 comments) says:

    From the royal commission findings:

    In regard to the company:
    “In September 2010 the Pike chief executive, Gordon Ward, resigned and was subsequently replaced by Peter Whittall. The board demanded ‘better’ forecasting from management, as Pike had ‘over-promised and under delivered’.
    In November 2010 Pike was still in start-up mode and considerably behind its development schedule. Market credibility, capital raising, higher coal production, increased ventilation capacity, methane management and upskilling the workforce were significant challenges facing the company.
    “History demonstrates that problems of this kind may be the precursors to a major process safety accident.”
    “At the executive manager level there was a culture of production before safety at Pike River and as a result signs of the risk of an explosion were either not noticed or not responded to.”

    In regard to Dept of Labour:
    “The Department of Labour did not have the focus, capacity or strategies to ensure that Pike was meeting its legal responsibilities under health and safety laws. The department assumed that Pike was complying with the law, even though there was ample evidence to the contrary. The department should have prohibited Pike from operating the mine until its health and safety systems were adequate.”
    “…..departmental failure to resource, manage and adequately support a diminished mining inspectorate…”

    A court case would have failed due to many involved being unwilling to appear or even sign statements for Dept of Labour investigator thus making the evidence worthless but the truth has already come out in commissions report. Both Mine management and govt staff in the mining inspectorate were responsible. They were negligent in their duties and reckless. It is worrying to think that former or current dept of Labour staff who assessed Pike River may still be involved in the industry and equally as worrying that various former Pike River Mine mangers who worked under Whittall may also still be working in the industry either here or overseas but a court case paid for by the Crown won’t change this. An enterprising journalist might however like to follow up what happened to these various people…..
    The issue now is will the new legislation be enough, how will it be enforced and will there be resources available to ensure proper enforcement and compliance?? Judging from the rate of accidents and workplace deaths in forestry I have my doubts.

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  34. backster (2,000 comments) says:

    I think the Crown should set up a Tribunal called the West Coast Tribunal based in Wellington. It could hear the grievances of the affected parties and recommend full and final settlements. The Tribunal would comprise of politically appointed West Coast people who would consider the history of mining and Pike River Coal including recalled fact, legends, stories, and points of view. No contrary evidence would be admitted from parties other than the aggrieved as such might be offensive to their culture.
    Researchers and legal advisers would submit their expenses and accounts at regular intervals to the Crown for payment but only a cursory oversight would be necessary as to whether they are accurate as it needs to be understood that there is considerable stress involved. Instead any whistleblower would need to be summarily dealt to. Full and final settlements would need to be re-assessed every 20 years or so. Compensation need not be restricted to the families of the miners alone other Coasters including Iwi and Hapu may have had their Tikanga upset and the various deity may need mollification.

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  35. MH (558 comments) says:

    Under the act:

    19 Duties of employees

    Every employee shall take all practicable steps to ensure—

    (a) the employee’s safety while at work (including by using suitable protective clothing and suitable protective equipment provided by the employer or, if section 10(4) applies, suitable protective clothing provided by the employee himself or herself); and

    (b) that no action or inaction of the employee while at work causes harm to any other person

    There was a lot of inaction by many of these witnesses who could open themselves up to prosecution. That was a failure of the Commission to not hammer that home?

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  36. Bad__Cat (117 comments) says:

    I do not know for sure what caused the explosion. If, as stated by Bernie Monk and others, people are guilty of crimes causing workers deaths, then those responsible must include all the dead workers, including Bernie Monk’s son, the survivors, and the Health & Safety officer, who also lost a son. If there were such blatant misdeeds, all of the above were either complicit, or totally incompetent. If complicit, they are responsible under Health & Safety legislation. If incompetent, they should not have been employed there.

    Yet, other than Jaffa at 11:43 am above, I have never heard that mentioned or questioned by our responsible and competent MSM.

    I have not brought this up before in sympathy for those who lost loved ones there, but their ever increasing greed and baying for blood has got to where they need to be told to get real.

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  37. BeaB (1,958 comments) says:

    Where was the union? Andrew Little, Helen Kelly – where were you?
    You could have had the mine closed in an instant.
    Trevor Mallard – where were you? You approved the mine. You knew what the safety oversight was. Where was your legislation? Wherevwere your colleagues, the worker’s friends?
    Rockhouse and the other parents – why did you let your boys go down a mine you were so convinced was unsafe?

    So easy to blame one guy but the finger can be pointed in many other directions also.

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  38. Shunda barunda (2,964 comments) says:

    It’s interesting reading through these comments, most of which seem to be based on prejudices rather than what actually happened or what should now happen.

    Thoughts of blaming those underground are pretty pathetic, regardless of whether one or more of those men caused the explosion. The truth is, the Indians don’t run the tribe, the chiefs do, and you don’t recruit young men, bribe them with large performance bonuses and then leave them to it without proper management or safety monitoring.

    I knew 3 of the guys that died, and 2 of them weren’t even miners, they were builders that had nothing to do with coal extraction. Bernie Monks son was a builder also.
    Some of the guys down there were quiet family men just earning a living, one guy told me he didn’t like it, but had no other work and the money was good, he was a roofer by trade.

    It seems incomprehensible to me that we should just forget that they are laying down there and walk away, it is an appalling tragedy and something needs to come out of it, moral corporate failure is what caused this, not some young trainer miner.

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  39. Sofia (784 comments) says:

    … it is an appalling tragedy and something needs to come out of it …

    I don’t know that anyone has said we should just forget that they are laying down there
    But the reality remains: no one at present knows what actually happened or why.
    Re-entry of the mine may establish that, and I trust appropriate experts may be part of the team that goes in, if it is safe to do so.

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  40. Johnboy (13,424 comments) says:

    The Pike River mine should have been a bloody big hole in the ground dug down from the top of the hill so all it’s gases could have vented naturally.

    While we continue to give credence to the greenies and their handmaidens in DOC and allow them to stand in the way of progress we can expect to continue to swap human lives for the lives of snails etc.

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  41. F E Smith (3,275 comments) says:

    In John Key”s new Zealand, you can murder 29 people and pay a fine to get off.

    You know how we were talking about defamation the other day?  Well, there you are right there.

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  42. Johnboy (13,424 comments) says:

    If someone suggests that you shag sheep FES is that defamation?

    If you suggest it yourself is there a crime called self-defamation…… Sort of like self-abuse?

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  43. jackinabox (352 comments) says:

    “While we continue to give credence to the greenies and their handmaidens in DOC and allow them to stand in the way of progress we can expect to continue to swap human lives for the lives of snails etc.”

    Fuck you Johnboy!

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  44. Johnboy (13,424 comments) says:

    How big’s your cock jack? :)

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  45. MH (558 comments) says:

    none goes down a mine without a tool box meeting or brief explaining the hazards,how to don masks,safety points etc etc. Those workers ignored warnings,were aware,some had quit the mine because of the lax in safety,you can’t tellme they weren’t aware,they choose to ignore their duty to themselves and others, Greed.
    The health and safety act was changed to put emphasis on safety to all involved in a workplace esp an inherently dangerous occupation such as mining. The act made employees liable for their actions or inactions.

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  46. OneTrack (1,977 comments) says:

    I’m with Johnboy – the damn thing should have been open-cast in the first place. Stuff the snails. I know, why dont we do it now, dig down , recover the bodies/ash and then safely retrieve the coal. And nobody else gets killed. Win-win.

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  47. cha (3,539 comments) says:

    the damn thing should have been open-cast in the first place.

    Just one small problem.

    Pike River was developed as an underground mine, because open cast mining was not economic owing to the depth of the Brunner coal seam.

    http://pikeriver.royalcommission.govt.nz/Volume-One—What-Happened-at-Pike-River

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  48. Shunda barunda (2,964 comments) says:

    I’m with Johnboy – the damn thing should have been open-cast in the first place. Stuff the snails. I know, why dont we do it now, dig down , recover the bodies/ash and then safely retrieve the coal. And nobody else gets killed. Win-win.

    From my discussions with a Solid Energy manager of another West Coast open cast mine and the geology reports I have read, open casting is just not a viable option for the vast majority of the Pike coal reserve.

    The volume of material that would have to be removed in an extremely difficult environment is just unworkable, the Pike disaster has nothing to do with snails or greenies and everything to do with corporate immorality on an appalling scale.

    Sorry if that makes you uncomfortable, but it is the absolute reality of the situation.

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  49. F E Smith (3,275 comments) says:

    If someone suggests that you shag sheep FES is that defamation?

    Depends on whether your name is Cletus or not, Johnboy.

    If you suggest it yourself is there a crime called self-defamation…… Sort of like self-abuse?

    No law against either, as far as I am aware, but if you defame yourself too often you might go deaf!

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  50. jackinabox (352 comments) says:

    OneTrack (1,290 comments) says:

    December 13th, 2013 at 10:17 pm

    I’m with Johnboy – the damn thing should have been open-cast in the first place. Stuff the snails. I know, why dont we do it now, dig down , recover the bodies/ash and then safely retrieve the coal. And nobody else gets killed. Win-win.

    Another ignorant blowhard!

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  51. OneTrack (1,977 comments) says:

    Jackinabox -Wow, that killed my argument didnt it. I am just overwhelmed with your logic.

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  52. jackinabox (352 comments) says:

    You haven’t got an argument OneTrack, you’re just repeating Johnboy’s earlier crap.

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