Eight people died, including the skipper, when the Easy Rider
sunk in Foveaux Strait in March 2012. The sole director of the
company which owned the vessel, Gloria Davis, has recently been
She was charged with failing to take all practical steps to
ensure the safety of contractors (vessel deckhands) working on
board the vessel.
The Court found that the Easy Rider vessel had gone to sea on a
commercial fishing trip:
Without having passed a safety audit
Carrying passengers which was not permitted under its maritime
With a skipper that did not have the required skipper's
With a number of safety issues, including insufficient
A safety audit was actually commenced on the day the vessel
sank, but the inspector, who was unaware of the planned sailing,
had postponed the full inspection due to missing documentation.
Ms Davis was charged under s 56(1) of the Health and Safety in
Employment Act 1992, which allows charges to be brought against
directors of a company in their personal capacity for their
acquiescence or participation in the health and safety breaches of
Charges under s 56(1) have historically been relatively rare,
and successful prosecutions have tended to involve small
owner-operated businesses. Section 56 is to be superseded in the
new health and safety regime, which will instead impose direct
obligations of due diligence on company directors.
Ms Davis argued that her role was merely clerical and she did
not have any real responsibility for safety matters. She was not
involved operationally at all in the Easy Rider fishing business.
That side of things was run by her husband the skipper. However,
the Court found that she had clearly held herself out as having
responsibility for health and safety and maritime compliance
matters (she was listed as responsible for safety procedures in the
Safe Ship Management Policy and Operations Manual
(SSM) and had taken practical responsibility for
all compliance paperwork).
The Court considered she had (or ought to have had) knowledge
about health and safety issues relating to the vessel. In
She knew that her husband did not have the required
skipper's certificate. She was involved in a telephone
conversation in which her husband attempted to mislead the safety
audit inspector of that fact
She also knew that passengers were being carried on a
commercial voyage, which was not permitted under the SSM
While she said that her husband had told her that the vessel
had passed the safety audit that day, given her knowledge about the
lack of skipper's certification, she had an obligation to make
further enquiries about how this was possible.
In these circumstances, there were steps that Ms Davis could
have taken to protect the contractors from harm and by failing to
take these steps she acquiesced in the failures of the company.
This case illustrates the trend towards imposing greater
liability on directors of companies involved in health and safety
Under the new regime, we expect more cases of directors who are
not operationally involved being found liable for health and safety
breaches, in circumstances where they have not obtained key
knowledge on health and safety performance in order to ensure it is
The case also illustrates what has been a problem with s 56(1)
from the outset: it has generally only applied where a director,
even if not actively involved in the business operations, is close
to core operations (compare, for instance, the Pike River case, in
which no directors were charged).
It remains to been seen whether the new due diligence provisions
will be effective at capturing directors in larger enterprises, who
are less likely to have as much direct knowledge and involvement in
the day-to-day business.
The case is a timely reminder that breaches of health and safety
policies are not just a problem for the company but also for those
individuals responsible for health and safety implementation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Hon'ble High Court of Bombay has held that where a Scheme of Amalgamation is executed between two companies registered in two different states [...], then the said two orders are two independent instruments.
Lawyers are pretty good at figuring it out quietly and amicably among themselves, without recourse to a public courtroom.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).