Maritime New Zealand v Skippers Canyon Jet Ltd [2021] NZDC 11510

Published 06 December 2021

Sentencing — failing to ensure that plant without risks to any persons — exposing individuals to risk of death or serious injury — jetboat collision — failure to carry out proper maintenance — mechanical fault — Health and Safety at Work Act 2015, ss 38(1), 42(2)(c), 48(1), 151 & 152-158 — Sentencing Act 2002, ss 21 & 85 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — Big Tuff Pallets Ltd v Department of Labour (2009) 7 NZELR 322 — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 — Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 — Moses v R [2020] NZCA 296 — WorkSafe New Zealand v Puke Coal Ltd [2020] NZDC 18038 — Maritime New Zealand v Fullers Group Ltd [2020] NZDC 10157 — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 — Maritime New Zealand v Fullers Group Ltd [2017] NZDC 11241 — Maritime New Zealand v Dolphin Watch & Nature Ecotours Ltd [2012] DCR 321 — WorkSafe New Zealand v Cardinal Logistics Ltd [2018] NZDC 19686 — Maritime New Zealand v Nino’s Ltd [2020] NZDC 2536. The defendant company faced a charge of failing in its duty to ensure that its workplace plant was without risk to the health and safety of any person, thereby exposing individuals to the risk of death or serious injury. The defendant ran jetboat trips as a tourist venture. The charge arose from one such trip where the steering wheel of the jetboat suddenly locked. Despite the skipper's efforts to slow the jetboat, it collided with a canyon wall. The jetboat had been carrying nine passengers, all of whom suffered injuries ranging from bruising and lacerations to joint dislocation and broken bones. Many of them also suffered ongoing psychological effects. An investigation by the prosecutor showed that the defendant lacked proper systems and procedures to ensure that its jetboats were maintained in accordance with the manufacturer's instructions; failed to use torque wrenches in jetboat maintenance, as specified by the manufacturer; and failed to follow the manufacturer's specifications in maintenance of the jet unit. These failures had been the main cause of the loss of steering control that had led to the accident. The Court awarded each of the passengers reparations totalling $22,174.27 and emotional harm awards totalling $260,000. In setting the fine, the Court observed that there was a degree of inherent risk in going on a jetboat trip. However the defendant had to ensure the safety of its passengers as its top priority, and its passengers were entitled to expect that the defendant's equipment would be safe and well-maintained. However the equipment was not safe, because of a failure by the defendant to carry out correct maintenance. The Court assessed the defendant's culpability as falling between the mid and upper point of the medium band in Stumpmaster, and set a start point for fine of $500,000. In mitigation the defendant was remorseful, had supported the victims after the accident, had cooperated with the investigation, had taken remedial measures, was a first-time offender and had pleaded guilty. Together with the defendant's financial position and the impact of COVID-19 on the tourism industry, these factors reduced the final fine to one of $50,000. The Court also ordered costs of $12,500. Judgment Date: 9 June 2021.