Family of killed sky diver Tyler Nii fear no one will be held accountable
Tuesday, 30 July 2019
They have lost a loved brother and son. Now Tyler Nii's family are seeing any chance for justice slip away. DEBBIE JAMIESON reports.
Tyler Nii planned to rent a campervan and see the sights of New Zealand during his two-week holiday, but the 27-year-old tennis coach from California never made it. On his second day he went tandem sky diving in Queenstown, crash landed in the 300 metre-deep, cold waters of Lake Wakatipu and is missing, presumed drowned.
'This has been devastating for us,' his brother, Kevin Nii, says of the January 2018 tragedy.
'My parents have had a really difficult time with it. I'm not doing any better. I've got a job and two kids but it's difficult getting by with the trauma of losing my brother … We used to see each other every day.'
They believed those responsible would be held accountable, but instead have faced only frustration dealing with New Zealand's complicated accident investigation regime – a system they see as secretive, ineffective and hostile to victims.
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Mostly their contact has been with the Civil Aviation Authority (CAA), which led the initial investigation, Nii says.
'They were really difficult to work with. I felt they purposely were being very obtuse to us, very rude … it was like they wanted to keep us in the dark.'
The family feels the CAA, and by extension the New Zealand Government, does not care about what happened to Tyler, or whether anyone is held accountable for the series of avoidable failures that led to his death.
The company is Skydive Queenstown Ltd, the owner and operator of NZONE, Queenstown's largest tandem sky dive company that every day takes dozens of keen sky divers over Lake Wakatipu where they leap from a plane about 5000 metres in the air with a tandem master.
The CAA summary of evidence details the series of failures on the day Tyler jumped.
It says there were 'a significant number of line twists' in the main parachute when Tyler and his tandem master, James Starvo, jumped. Because of this, Starvo performed a 'cutaway', which involved separating the main parachute from the parachute container system.
The reserve chute then failed to deploy correctly due to 'tension knots which could not be cleared'.
The pair hit the water and Tyler, following Starvo's instructions, pulled the life jacket activation tag. It did not inflate. Starvo partially inflated the life jacket by blowing into an attached inflation pipe.
'It appears the life jacket still did not inflate correctly (cause not determined), and a short time later, despite the best efforts of [Starvo] the victim, Mr Nii, submerged out of view,' the report says.
The company did not have a rescue boat nearby and it was only thanks to the efforts of an alert passing helicopter pilot that Starvo was rescued by a local farmer in a boat about 20 minutes later.
Extensive searches followed in Lake Wakatipu but Tyler's body has not been found.
MORE QUESTIONS THAN ANSWERS
The report was followed by a letter of explanation to the Nii family. Both have left them with more questions than answers.
'I just don't understand it,' Kevin Nii says. 'They point to so many things in there but there's no real explanation.'
For example there is little information regarding the failure of both parachutes to open except that the cause was 'undetermined'.
The CAA explains the parachute technician who packed the chutes had more than 40 years of experience and there was no evidence supporting any concerns with his work or issues with the NZONE's maintenance plan.
The report focuses on the moments after Tyler and Starvo hit the water. They were still alive and able to be rescued so the report assesses the procedures and practices that should have led to both of them being saved, under the Health and Safety and Work Act.
The first is the pre-flight safety briefing, which investigators assessed through an interview with Starvo eight months after Tyler's death, the presentation of a Safety Card shown to all jumpers, and a 'Conditions of Your Participation' form, signed and dated by Tyler.
The report concludes the company took 'all practicable steps to minimise risks to the health and safety of its workers and other persons'.
Kevin Nii says the justification is ridiculous: 'Of course they are going to say they always follow safety regulations.'
He is also concerned that London nurse Natasha Owen, who was due to skydive shortly after his brother, told the Otago Daily Times she did not feel she was given a proper safety briefing. She was never shown where her life jacket was nor how to use it, she said. She had not been interviewed by the CAA and there is no evidence the CAA interviewed any other passengers taking part on the day. The organisation has not responded to a query on this matter.
The concerns about the life jacket are dismissed in the report largely because the CAA has no rules requiring life jackets to be carried while skydiving, even over water.
Despite that, NZONE had gone to considerable effort to source suitable life jackets, the report notes.
It does not discuss the reasons behind Tyler's life jacket not working.
The report concludes: 'The life jacket selected and provided for the 10 January 2018 operation was fit for purpose and suitable for the nature and type of application for which it was being used'. It also states the circumstances on that day were over and above those that could be 'reasonably and practicably envisaged'.
The final aspect was the company's own emergency response plan, which included notifying emergency services and a helicopter or boat being dispatched. It was not required to have its own boat and the report concluded the company had complied with the plan.
'So there's no need for them to have a boat to actively pick up anybody that falls in the water because they don't expect them to fall in the lake … Then why are they wearing a f…ing life jacket,' Kevin Nii asks.
The emergency response plan itself is based on the premise that a water landing is not anticipated given that a double chute malfunction is 'an exceedingly rare event'. There had never been a double parachute malfunction in New Zealand before Tyler's death.
PROSECUTION UNLIKELY
Three days after Tyler's death the company made several changes, including having a jet ski available for water rescues, making life jackets mandatory for all people, and adding water landing workshops to training.
But for the Nii family it is too little and too late.
'There's just so many failures that happened but it seems no one can prosecute the company,' Kevin Nii says.
'They did this and now they just keep doing what they're doing. There's nothing we can do.'
The CAA defends its position and says it has worked to constructively engage with the Nii family but offers to discuss the accident, its investigation, and its decision not to prosecute have not been taken up.
The organisation found itself under fire in May this year when investigations into the 2015 helicopter crash on Fox Glacier that killed seven people revealed inadequate oversight of the helicopter company and CAA inspectors who were 'too trusting', allowing operators to continue with substandard health and safety practices and inadequate pilot training.
Brett Gameren, the brother of pilot Mitch Gameren who died when the helicopter went down, said despite more than three years of investigations and a trial, there were still many unanswered questions.
He called for more funding for the CAA to carry out more thorough audits.
RACE AGAINST TIME
In Tyler Nii's case, the CAA had one year to prosecute and chose not to following consultation with Crown solicitors.
'There is simply no evidence of negligence, reckless behaviour, or wilful misconduct. Indeed, all of the evidence indicates the exact opposite,' the CAA letter to the family states.
The family has two years to apply to the District Court for a private prosecution but, with time running out, it increasingly seems unlikely.
The first difficulty they face is a lack of information from the CAA. The organisation has refused to give the family background information that fed into its report, or to answer their questions.
Requests for more information from Stuff, have also been refused. Stuff has appealed to the Ombudsman.
There may be more specific information released when the Transport Accident Investigation Commission finishes its investigation, especially regarding the failure of the parachutes, but that does not look at laying blame, rather at 'avoiding similar occurrences in the future'. Also, it has no set timeframe and there is no indication it will available within the two-year statute of limitations for the family.
Ultimately the prohibitive cost of a private prosecution may be the determinant for the family. New Zealand lawyers have put it at between $150,000 and $200,000 with possible reparation of between $70,000 and $150,000 achievable.
The family has considered suing the life jacket company in the United States, Kevin Nii says.
'But we can't do that unless they recover the body and the life jacket. Everybody we talk to says there's nothing we can do.'
In another kick, it appears any compensation will be minimal, despite promises from various organisations after Tyler's death. The family are not considered victims of crime for the sake of the Victims Compensation Fund because no-one has been prosecuted and any possible payout from ACC appears to be small.
'Obviously nobody went into this expecting to be compensated but this is adding more insult to injury.
'I can understand the Government not wanting to give us money but it's really frustrating that they're actively trying to screw us over. The fact that we can't sue anybody is really difficult.'
'BE VERY CAREFUL'
One sympathetic ear is Chris Jordan, the British father of Emily Jordan who died while river boarding in Queenstown in 2008. The company involved was prosecuted but Chris Jordan was appalled by a system he felt treated him as an 'interfering Brit'.
He was not surprised to hear of the Nii family's plight and said the fallout from his daughter's death had changed his view of New Zealand. 'I warn anyone going there to be very careful.'
Jordan fought for changes, leading to the introduction of new adventure tourism legislation requiring all 'adventure tourism' operators to be registered and undergo a mandatory safety audit.
A Worksafe spokesperson said since 2014-15, there had been two incidents, each involving one fatality, that were defined as adventure activities under the Health and Safety at Work Act adventure activities regulations. Another two incidents involving three deaths were under investigation. None of these included Tyler Nii's death as tandem skydive companies do not fall under this legislation but are monitored by the CAA.
The Nii family is watching with interest the coroner's decisions over a triple skydiving fatality in Queensland, involving the same parent company, which happened just three months before Tyler's death.
In what has been described as 'Australia's worst skydiving tragedy', mother-of-eight Kerri Pike, 54, her tandem master Peter Dawson, 35, and solo instructor Toby Turner, 34, died when they collided in mid air in October 2017, at Mission Beach.
A key question the coroner will seek to answer when her report is released in late August is whether Turner's parachute deployed prematurely. Police have already given evidence his parachute was not packed properly and the outline of the coroner's assessment includes establishing whether the parachutes and their rigging and packing complied with rules.
Tyler Nii's family only hope his case is ultimately given the same scrutiny.
Tourism Minister Kelvin Davis declined to comment, as did NZONE.