2002_07_july_implosion anniversary

It was a typical cold, Canberra July day – sunny with a sky that ached blue. It was five years ago today.

But this day was not going to be typical. The memory of it was going to be hard-wired into the brain of all who were there.

It was not like the big international news stories: everyone knows where they were when JFK was shot or where they were when they heard about the death of Princess Diana. We all know (ital) where (end ital) we were. The linking fact was how we felt. The transition of our feelings.

Five years ago today the Canberra Hospital was imploded to make was for the new National Museum of Australia. The implosion went terribly wrong. Bits of steel shrapnel escaped the carefully laid barriers, mounds and fences, splattering into Lake Burley Griffin.

As nearly a hundred thousand people were going “”Wow. Amazing. Fantastic” one piece of metal, weighing nearly a kilogram shoot across the lake and hit 12-year-old Katie Bender in the head, killing her instantly.

And now, five years later, the wretchedly hopeless, incompetent, unfeeling legal and administrative system and those who run cannot face the Bender family squarely and deal with them fairly and responsibly – mother, Zora, father, Mato, sisters Anna and Maria and brother David, who saw Katie hit by the shrapnel and die.

The case is still in the courts. The ACT Government does not self-insure, so it cannot be the generous litigant or even the model litigant. It is in the hands of an insurance company.

Insurance companies are obliged – quite properly — to look after shareholders’ funds. But they and their legal advisers were not part of that event five years ago in which the Government which planned the spectacle and community which watched it must all accept some collective blame. No-one wanted death and injury – least of all those who ordered and those who executed the implosion.

Who knows. Technically and legally no-one might be to blame. It was an accident. No-one was to know about extra-strong steel hidden in concrete pillars. There might have been no means of finding out. No-one was to know that the extra-strong steel might fly out, against all the past experience of implosions.

But there is a doctrine of law which has a Latin phrase: res ipsa loquitur . It means the facts speak for themselves. You have a government and its agents and contractors engaged in the demolition of a hospital building. Those contractors and agents agree upon an implosion. You have a government that invited people to come and watch, stating the best vantage point. You have a family responding to that invitation. The demolition results in shrapnel escaping, killing one of the invitees in the presence of her family.

Should it really take five years to resolve who is liable and what should be done to help the Bender family?

Coronial inquest began in March, 1998, a year after the event, and ran until November, 1999. The coroner cleared Chief Minister Kate Carnell of any direct responsibility and charged shot-fired Rod McCracken with manslaughter and demolition contractor Tony Fenwick with being knowingly concerned with the same offence. But all charges were later dropped after the Director of Public Prosecutions found there was no enough evidence to support the charges. The coroner was highly critical of government agencies for both their handling of the event and their promotion of it as a public spectacle.

But since the coronial inquest no-one and no organisation has been held to account to for the terrible suffering of an innocent family. The legal process has ground on. The Benders have had to sue the government and government agencies and contractors in a separate action.

It is as if it were better that there had been no coronial inquest and the huge sums of money that went out legal bills – more than what the Bender family is now asking – had been paid to them directly.

Under Australian law, the Bender family would not be entitled to huge damages. The big damages in personal injury and death cases arise when loss of earnings are at stake. In the case of children being killed damages are not high. In the case of the shock to those who see the child die, again, the damages are not huge. Collaery says, though, “The Bender family experience was truly horrific and in the worst category imaginable. It wasn’t as if they were at a stock-car race, where you always know something can go wrong. They were coming home from Mass, and had heard the invitation on the radio, and stopped to join the crowd.”

But now the Bender family are now facing a grim choice.

They either accept the compensation offered, which their lawyer Bernard Collaery has described as at best inadequate, or run the risk of running a case and having costs awarded against them. They would lose their house in Fisher – their only significant offer.

The Benders are up against a legal device known as the Calderbank offer.

Under this device it is open to a defendant to pay into court a sum of money. If the plaintiff does not get more than this amount, the plaintiff (even if otherwise successful) it hit with the costs of the case – the costs of both the plaintiff and the defendant. That presents a huge risk.

The trial might go six weeks – which would run up costs of a million dollars or more. It is a big incentive to the Bender family to accept what they might otherwise think is inadequate or unfair compensation rather than run the risk.

The insurance company might well be within its legal rights to contest every step of the claim, but let us go back to that July day five years go. It was a community event. It was to mark the end of a hospital in which families experienced birth, life and death.

In those circumstances you would thing the ACT Government might deal with the compensation to the Bender family and allow the case to run – if it must without them.

It is a pitiful state of affairs that the government, its agencies and contractors and community that orchestrated and took part in this event have not – five years later – dealt with its fall-out.