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.
Ms Davis 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
- with a number of safety issues, including insufficient lifejackets
- carrying passengers which was not permitted under its maritime licence
- with a skipper that did not have the required skipper's certification
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 Section 56 is to be superseded in the new health and safety regime, which will instead impose direct obligations of due diligence on company directors.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 and had taken practical responsibility for all compliance paperwork).
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.
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