In August 2016 Richard Brooking's world imploded when he lost his son in a forestry accident in the back blocks of Hawke's Bay. An investigation cleared the logging company of criminal wrongdoing but Brooking has refused to accept the findings and six years on is still fighting to clear his son's name. Lane Nichols reports.

The father of a promising rugby player killed in a remote forestry accident has launched a rare private prosecution in a bid for accountability and to "uphold the mana of my son".

Richard Brooking's 24-year-old son Niko O'Neill Brooking-Hodgson died in August 2016 when he was struck in the head and chest by a piece of machinery while working in Esk Forest at Te Haroto, northwest of Napier.

A WorkSafe investigation decided the company should not be prosecuted.

The family believe this implied that Brooking-Hodgson, a young father and experienced forestry worker of Ngāti Porou descent, was responsible for the accident which claimed his life.

But Brooking, 51, who lives in the remote East Coast settlement of Te Araroa, has refused to accept the findings and believes multiple systemic failures led to his son's death.

Richard Brooking holding a photograph of his son Niko O'Neill Brooking-Hodgson, 24, who died in a forestry accident in August 2016. Photo / Supplied

Backed by a team of supporters that included the late Council of Trade Unions leader Helen Kelly, Auckland lawyers and East Coast MP Kiri Allan, he has been battling authorities and navigating the intricacies of our justice system since the accident, determined to clear his son's name.

Earlier this month, Brooking filed charging documents at Napier District Court after a judge cleared the way for a private criminal case to proceed.

The prosecutor currently listed is Richard William Brooking.

The defendant is DG Glenn Logging Ltd (DGL), which if convicted under the Health and Safety at Work Act could be fined up to $1.5 million.

The company has refused to respond to repeated Herald requests for comment but is expected to defend the charge.

Niko O'Neill Brooking-Hodgson playing for Pirates premier rugby team in 2014. Niko died in a forestry accident in northern Hawke's Bay in 2016. Photo / Supplied

Brooking - a former forestry worker and health and safety consultant, who has devoted much of the last six years to his son's case - has faced numerous setbacks but never wavered in his pursuit.

He says he is determined to hold the company accountable and bring justice for his son.

"Everywhere I've gone had just been a locked door and I've had to find my way through it. I shouldn't have to fight this hard.

"All this is about is change and improvement. That's my fight, and just trying to clear Niko's name because he wasn't wrong.

"These guys know I'm still here. I'm still fighting for what's right, I'm still fighting for accountability. And that's all it is - to uphold the mana of my son."

Investigator 'lacked experience'

Brooking-Hodgson suffered unsurvivable injuries when a hauling rope became snagged while retrieving logs on a steep slope then jettisoned a D-shackle and line towards him at high speed, striking him in the face and upper body.

The Gisborne Pirates and Clive premier rugby player, who left behind a partner and 3-year-old daughter, died cradled in his foreman's arms before a rescue chopper could reach the accident site.

It was the company's second forestry fatality in just five months.

A WorkSafe investigation found DGL had a duty to ensure the health and safety of its staff, and it was "reasonable to conclude" the company knew of the risks associated with snagged line retrievals "resulting in tension and release".

However, it found DGL had "generic" safety controls in place and recommended no action be taken against the company. No charges were ever laid.

The young man's family claims the investigation was inadequate and the written findings, which were littered with typos, flawed.

They say the lead investigator lacked sufficient WorkSafe experience or expertise in the forestry sector. They also fear crucial evidence may have been missed.

"We deserved more, a hell of a lot more," Brooking says.

 

Richard Brooking is campaigning to improve safety in the forestry sector to prevent more needless deaths. Photo / NZME

After the family raised concerns about the way the investigation was handled, WorkSafe commissioned an independent review which upheld the original findings.

Brooking then fought for the coroner to hold a public hearing last year so the family's legal team could present expert evidence and cross-examine witnesses.

The Gisborne inquest resulted in a raft of recommendations around safety protocols to prevent similar deaths but did not apportion blame.

Then, after months of meticulous preparation by Brooking and his team, a judge granted permission on June 6 for a private criminal prosecution to proceed.

Days later on June 16, Brooking drove seven hours to Napier with his wife and served papers on DGL's solicitors.

His heart was in his mouth.

"I just had my phone on record in my pocket and I said to my wife who was in the truck, 'Here we go'.

"My whole body was shaking. She said, 'What's the matter'. I said , 'For me this is it. This is the last piece of paperwork I have to file and then it's done'."

"They blame the ones who can't speak"

Brooking's home is about as far removed from metropolitan offices of power as one can get.

The small settlement of Te Araroa is situated just 20km from East Cape along the snaking and picturesque State Highway 35, which winds its away around the remote coastline between Ōpōtiki to the west and Gisborne to the south.

It's an unlikely place from which to launch a test legal case against a successful forestry company that employs close to 200 staff.

But it's here that Brooking has spent months trawling through mountains of paperwork, reviewing investigation reports and witness statements, in an attempt to prove WorkSafe got it wrong.

He claims the WorkSafe investigation was not up to scratch.

"The questions that should have been asked were never asked. The prosecution level was just so low."

Prominent health and safety lawyer Hazel Armstrong was an expert witness during the inquest. She also reviewed the original WorkSafe investigation file and has assisted Brooking during his campaign.

She says she believes there were multiple failures that led to Brooking-Hodgson's death and lingering questions about what reasonable steps the employer could have taken to prevent the tragedy.

Niko O'Neill Brooking-Hodgson, 24, left behind a partner and 3-year-old daughter. Photo / Supplied

The watchdog's investigation "wasn't a thorough analysis", she claims.

"I think there were lots of flaws in how WorkSafe approached this particular fatality.

"What they didn't count on was Richard Brooking's persistence and absolute dedication to clearing his son's name and ensuring that other people don't die."

Brooking says his family had little input during the investigation and felt their views were not properly considered.

"WorkSafe is judge, jury and executioner. To me they are their own law."

In clearing the company of criminal culpability, WorkSafe had effectively blamed his son, Brooking said. The implication was that the young man was standing in the wrong place or had somehow failed to identify the risk of a high tension line caught on forest debris rocketing free with deadly consequences.

But Brooking claims this ignores the company's responsibility to "ensure as far as reasonably practicable the health and safety of its workers", including proper hazard identification and risk assessment, and proper training around safety protocols.

He says many other grieving families have been forced to accept similar findings, sullying memories of the dead and bringing more pain.

"They blame the ones who can't speak. But I just didn't believe this was Niko's fault. We're one of the first families to stand up and push back.

"There are so many more families that have gone before me that have accepted the WorkSafe report, that it was their loved one's fault, and they have to hold that in their heart for the rest of their days. That's hard to stomach. I'm fighting for those families."

Deadly sector

Forestry contributes about $6.7 billion each year to the economy but is one of the nation's most deadly sectors, with nearly 50 deaths recorded in the last decade.

The CTU campaigned for the industry to address its woeful safety record after a spate of fatalities in 2012 and 2013, with the union spearheading a number of private prosecutions at that time.

Helen Kelly's work was later credited for a drop in forestry worker deaths. Her campaign led to the creation of the Forestry Leadership Action Group, new Health and Safety legislation, and increased monitoring from WorkSafe.

However, the deaths continue to occur.

Former Council of Trade Unions president Helen Kelly led a campaign to improve safety in the forestry sector after a spate of deaths. Photo / NZME

In a bid to improve safety, Brooking has now joined forces with the Tāngata Humāria Charitable Trust to campaign for trained on-site health and safety representatives to be mandatory at all forestry operations.

The trust is training up the reps and seeking funding to expand the programme across the region.

Trustee Candice Gate said too many people were dying in the forestry sector. They and their whānau often had no voice.

"We're still lining up our young men to not come home in the evenings and at a ground level we're not seeing much change."

Brooking says he's now gearing up for the private prosecution and awaiting the company's response. The case will have its first hearing on July 13.

He says it's difficult for people "without skin in the game" to comprehend the grief and suffering families like his have endured.

"Once you have a loss like that you change how you think and who you feel for.

"We are still fighting for change."

But that dogged perseverance has taken its toll.

Brooking admits he's been through "one hell of a battle" and battles come with scars.

"You get to the stage where you think, 'Is this worth it? Why are people second-guessing it? Are you wrong?' That takes a toll on your mental health and mental wellbeing.

"I just have to toughen up and move forward. This is for our people."

Niko Brooking-Hodgson, 24, died in a logging accident in Esk Forest at Te Horoto, northwest of Napier in August 2016. Photo / NZME

Brooking thanks those who have supported him. He says he has learned a lot in the last six years, including how to read people and understand their motives.

Asked if he could have got this far without his expert advisers, he replies: "Shit, no."

"If the job had been done properly on WorkSafe's behalf I wouldn't be here. If someone from DG Glenn had said to me, 'I'm sorry, this is what happened', I would have accepted that and moved on. That's all I ever wanted.

"If it's an accident, explain that to me and I would have accepted it. 'This is someone that's done wrong, they made a mistake, we need to build a bridge and get over it'.

"But I never got that so I'm still here today.

"For me it's about accountability. What happened and what went wrong. It's about change for me and the next families."

WorkSafe stands by investigation

WorkSafe's general manager operations Pelin Fantham says she can't comment on the private prosecution while it's before the court.

WorkSafe acknowledges the Brooking-Hodgson whānau's disappointment with the agency's decision not to prosecute DGL.

"WorkSafe's investigation was robust and we stand by it. We are required to meet the Solicitor-General's guidelines before taking a prosecution. Because there was insufficient evidence that an offence had been committed, we were not able to take a prosecution in this case.

"WorkSafe recognises the impact of Niko's death on his whānau, and that investigations can be difficult for victims and their families. We have engaged with Niko's whānau throughout the process and continue to do so.

"We have also established a number of organisational support mechanisms, including a dedicated victim and coronial services team."

Fantham says forestry remains a high-risk sector, and WorkSafe is committed to reducing injury and fatality rates in partnership with the industry.

An excavator fitted with a logging grapple loads a trailer in Pan Pac's Esk Forest, Hawke's Bay. Photo / NZME

Brooking-Hodgson's daughter Madison is now 9 and visits Brooking and his wife on the Cape during school holidays.

The first and last place they go each visit is to her father's grave.

He lies next to his great-grandfather on one side, and his cousin Piripi Bartlett on the other, who was killed in another forestry accident nearly a year to the day after Brooking-Hodgson's death.

Brooking says he's grateful to spend time with his moko and to be able to share memories and stories about her father, to keep his legacy alive.

"On his birthday she'll make a cake, or we'll make some muffins and go up and put them on his grave in a jar.

"She's getting to that age where she's asking questions."

He wants her to know what kind of a man her father was and that he was not to blame for his death.

"At the end of the day this is a story for her, when she gets old enough, to understand the fight that we've done to tell her exactly what happened to her dad."