Monday, October 24, 2016

All the elements of tragedy were there

(courtesy Old Merthyr Tydfil)
Friday marked the 50th anniversary of the horrific Aberfan disaster, in which a mountain of coal waste buried part of the Welsh town, killing 28 adults and 116 children. (The title of this post is a variation on the refrain from Keidrych Rhys's poem, "Aberfan: Under the Arc Lights", quoted by Prince Charles at the commemoration ceremony.) As the New York Times reports:
At the inquest, when a child’s cause of death was listed as asphyxia and multiple injuries, one father famously said: “No, sir. Buried alive by the National Coal Board. That is what I want to see on the record.”
Iain McLean has done some interesting work on the policy lessons of the disaster, including some legal ones:
The legal framework for corporate manslaughter already existed in 1966. The managing director of a local firm had been prosecuted in 1965 for allegedly instructing a welder to cut up a disused river bridge starting in the middle. The welder had done so and was drowned when the bridge collapsed. The prosecution failed because it could not prove that it was the managing director who had given the order. But two of the counsel who subsequently appeared before the Aberfan Tribunal had also appeared in that case, with reversed roles. The prosecuting counsel in 1965 was counsel for the National Coal Board at the tribunal. The defence counsel in 1965 was counsel for the teachers' unions (who had lost five of their members) at the tribunal. Why then did they not consider the possibility of prosecution of the NCB? Partly because the idea was too mind-stretching; partly because it is always difficult, in a large organisation, to prove that a directing mind (mens rea) was behind a piece of criminal negligence. The Law Commission recommended in 1996 that a specific offence of corporate killing should be introduced. The Labour Party accepted this proposal and put it into its 1997 General Election manifesto. It still has not been implemented. This may be ascribed to corporate lobbying.... 
Therefore the best route is probably to impose serious fines on corporations for violations of health and safety law. That is what happened after the Clapham and Paddington rail accidents. Survivor groups complain that even seven-figure fines have little financial impact on negligent companies. That is true but at least they have a reputational impact.
Civil law is less help than one might expect. The NCB had strict liability to compensate those who suffered pecuniary loss from the slide of a tip: that is, it would have faced this liability even if it had not been shown to be negligent. This doctrine (known to lawyers as Rylands v. Fletcher, after the 1868 case that established it) has perverse consequences. If a corporation is liable whether it is negligent or not, it has no incentive not to be negligent. Furthermore, injuring people is expensive; killing them is cheap. A line of cases has settled that damages for bereavement are nominal, and that for example, there are no grounds for a bereaved parent to claim damages for the loss in support in their old age that they would otherwise have expected to get from their lost child.
Even injury claims are difficult when they relate to psychological injury which may take thirty or more years to be revealed. A University of Wales study showed that 29% of Aberfan survivors who agreed to be interviewed were still suffering from post-traumatic stress disorder (PTSD) after 33 years. No fewer than 46% of them had suffered PTSD at some time, compared with 29% in a control group of pupils who had attended the same secondary school but who did not come from Aberfan. As far as I am aware, no Aberfan survivor or parent has successfully sued the NCB or its successor body for causing them post-traumatic stress, although many display what the psychiatrists call 'florid' symptoms of it.
Our archival research tended to confirm that Aberfan was a disaster of corporatism.... The NCB and its senior officers escaped scot-free because the governments of the late 1960s and early 1970s needed their help in the 'high politics' of running down the coal industry without provoking a national strike.  There was no concept of 'making the polluter pay' in British public administration at the time, and a nationalised industry was treated as if it were a government department.  Therefore, policymakers thought that it would be futile to make the NCB pay the environmental (or even the direct) costs of the disaster, as such a payment would merely increase its deficit, which fell to be funded out of general taxation in any case.   

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