In an earlier blog post (‘Disaster really brings law into disrepute‘ (30 June, 2011)) I commented on the prosecution of Italian scientists for failing to predict an earthquake.   The Australian Broadcasting Corporation (ABC) reports the latest developments in this bizarre case – see ‘Italian scientists go on trial over 2009 earthquake‘ (21 September 2011).

The story reports that Italian prosecutors ‘…simply want justice” and the ‘… injured parties are asking for 50 million euros ($66.7 million) in damages.’  With the disclaimer that I know little of Italian law, these are interesting claims.  The scientists are being prosecuted for manslaughter.  If the case were brought in Australia there would be no issue of damages in a manslaughter trial; manslaughter is a criminal offence punishable, in NSW at least, by a maximum of 25 years goal.  The criminal courts do not award damages or money compensation, that is up to the civil courts.  That may also be true in Italy, it may be that the ‘injured parties’ are seeking damages in another hearing but that is not clear from the report from the ABC.

The report goes on to say:

The experts are accused of giving overly reassuring information to residents who could have taken adequate protective measures if they had been properly informed.

According to the indictment, the seven are suspected “of having provided an approximative, generic and ineffective assessment of seismic activity risks as well as incomplete, imprecise and contradictory information.”

In an open letter sent to Italian president Giorgio Napolitano, more than 5,000 scientists said the defendants essentially face criminal charges for failing to predict quakes, even though this remains technically impossible.

But Vincenzo Vittorini, a doctor who founded the association “309 Martyrs” and lost his wife and daughter in the disaster, said: “I hope that this trial will change mindsets and will lead to greater attention given to communication on risks.”

“No-one expected to be told the exact time of the quake. We just wanted to be warned that we were sitting on a bomb,” he said.

The claim that “No-one expected to be told the exact time of the quake. We just wanted to be warned that we were sitting on a bomb” seems bizarre.  If the prosecution succeeds one would expect seismologists to send out a warning, each day, to people in seismic zones saying ‘Be careful, there may be an earthquake today, it could be really bad’.  What would the implications be if this was followed in New Zealand, or applied to fire prone areas in Australia?

In Australia manslaughter requires either an unlawful and dangerous act, or criminal negligence.  Presumably issuing warnings was neither unlawful or dangerous so the equivalent prosecution in Australia would have to show the formulation of the warnings was so far below the standard to be expected of the reasonable person as to warrant punishment; it would also have to be shown that the warnings would have lead to a different outcome, and presumably no-one could have rebuilt their homes and some people still would have died, so that seems unlikely.  The fact that 5,000 scientist are supporting the defendants would suggest that their conduct would not meet the standard of criminal negligence in this country.

One has to ask that if one lives in a seismic zone where earthquakes have been happening, no amount of saying that there could or even will, one day, be a major earthquake will make the difference.  Is the issue ‘communicating’ risk by agencies, or listening by people that live there?

In my earlier post I said:

We are relying on secondary sources here, the true allegation and the legal issues are bound to be more subtle, but, from what we are told, this is one case where at least the [Italian] law is looking like an ass.

Nothing in the current report would make me change my opinion.   We can sympathise with Vincenzo Vittorini of the loss of his family, and the entire community over the loss of 309 lives but if he believes that more dire warnings, when an earthquake could not be predicted, in a region that had already suffered ‘hundreds of tremors’ and people hadn’t therefore done whatever they could do to make themselves safer, would have saved all those lives, they are kidding themselves.  What, one wonders, is more effective, a statement for a scientiest that an earthquake is likely or feeling the earth move?  Prosecuting the scientists won’t “… change mindsets and will lead to greater attention given to communication on risks.”   It will change mindsets so that people refuse to engage in the public safety business or give infinite pointless warnings, just in case:  ‘There was no tremor today but there may be one tomorrow  – run away!’ ‘You may be caught in a fire (even though one isn’t burning now) activate your fire plan NOW”.

We will need to keep an eye but at least a decision in Italy is no precedent in Australia.

Michael Eburn

21 September 2011.