$155,000 reparation and fines, and “project order” imposed after injuries to ferry passengers

05 June 2020

Auckland company, Fullers Group Limited, has been ordered to pay $68,336 in reparation to two victims after four passengers were injured – one suffering serious head injuries – when the passenger ferry, Kea, collided with the Devonport wharf on 9 November 2017.

The company was also ordered to pay a fine of $86,159 and costs of $19,765.

In addition, for the first time in a maritime case, the Auckland District Court also made a “work health and safety project order”. The order requires Fullers to lead work for its own crews and also for other maritime operators to improve safety. It is estimated that the project will cost Fullers $300,750.

Maritime NZ Northern Region Compliance Manager, Neil Rowarth, said the Health and Safety at Work Act (HSWA) gives Courts power to use a wide range of other sentencing options, in addition to reparation and fines, to ensure that large companies are given a meaningful sentence for health and safety offending. A project order is one of those sentencing options.

A project order looks to the future by imposing obligations on an offender under HSWA to carry out a project that will improve work health and safety. Reparation is compensation for the harm that was done and a fine is a penalty for failure to comply with the law.

“There is a strong message here that maritime operators, particularly those transporting members of the public, have a significant responsibility for public safety,” Mr Rowarth said.

“They must have good training in place for their crew and other staff, and must have ways of working that help keep people safe. If they do not, then they will be held to account.

“Work health and safety project orders are a new tool that Courts can use to hold operators to account and to improve safety. This will be watched closely by the maritime industry.”

Summary of the incident

At the time of the collision, 9.30pm, some passengers were standing and others moving to the exits, getting ready to disembark from the ferry.

The collision caused a passenger to be thrown down a flight of stairs, landing on her head and suffering serious head injuries and broken ribs. She was hospitalised for seven days, then underwent extensive follow-up treatment. She suffered injuries that may affect her for the rest of her life.

A second passenger also fell down the stairs and landed on top of the woman. Two other passengers were thrown off their feet, one suffering a concussion and significant shoulder injuries.

At the time of the collision, the Kea was helmed by a trainee master under the supervision of a training master.

A Maritime NZ investigation found that Fullers had failed to provide sufficient training time for the trainee master when the vessel was not in service and failed to provide more prominent safety advice about the need to remain seated until the vessel was properly berthed.

Since the incident, Fullers has introduced safety measures including making safety announcements before a ferry berths and additional training for crew.

The prosecution

Maritime NZ prosecuted, and Fullers pleaded guilty to, one charge of failing to comply with a duty that exposed an individual to risk of death or serious injury under section 48 of HSWA.

As part of any sentence imposed on a person who is found guilty or convicted of an offence under HSWA, the Court can impose a project order. In this case, Fullers sought the project order and Maritime NZ agreed that one was appropriate in the circumstances. Maritime NZ worked with Fullers to develop the terms of the project order. The Court made the project order as part of the sentence handed down today.

The project order requires Fullers to engage with various industry participants and train between 150-200 people across the sector to facilitate health and safety learning teams. The teams will work through business practices, near misses, and accidents to change how work is done so it is safer.

Fullers is also required to develop a competency framework for those learning teams and undertake a case study on their use in the maritime Industry. At the conclusion of the project, Fullers is required to make the resources it has developed, and the case study, available for free.

If a project order is not carried out as directed by the Court, the defendant can be prosecuted for failing to comply, which could result in a fine of up to $250,000.  In addition the court has the power to revisit the sentence.

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