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 convicted.
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 licence
- With a skipper that did not have the required skipper's certification
- With a number of safety issues, including insufficient lifejackets
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 the company.
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 Section 56 is to be superseded in the new health and safety regime, which will instead impose direct obligations of due diligence on company directors.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 particular:
- 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 breaches.
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 adequate.
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.