Seafort Holdings Limited v Maritime New Zealand [2018] NZHC 2338 (6 September 2018)

Last Updated: 18 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-109 [2018] NZHC 2338

BETWEEN	SEAFORT HOLDINGS LIMITED AND RICHARD JOHN PRENTICE Appellants
AND	MARITIME NEW ZEALAND Respondent

Hearing:	4 September 2018
Counsel:	A F Pilditch for Appellant C P Paterson and R M Dixon for Respondent
Judgment:	6 September 2018

_{JUDGMENT OF SIMON FRANCE J}

[1] The appellants operate a fast catamaran trip to the Hole in the Rock attraction in the Bay of Islands. On one trip in 2014 a passenger fractured vertebrae in her back. The appellants each faced the same two charges:

(a) under the Health and Safety in Employment Act 1992, they failed to act knowing that such failure was reasonably likely to cause serious harm; and

(b) under the Maritime Transport Act 1994, they omitted to do an act that caused unnecessary danger or risk to any person.

[2] In terms of the particulars, there was an allegation focusing on the skipper’s response once he learned of the passenger’s situation. This was dismissed by the District Court and is no longer in issue.

SEAFORT HOLDINGS LTD v MARITIME NZ [2018] NZHC 2338 [6 September 2018]

[3] The other allegation is that the boat’s operators were required to advise passengers:

... either during the pre-departure safety briefing, in the risk disclosure documentation, or while on board, that there was a heightened risk of back injuries resulting from jolting for older or overweight passengers sitting at the front of the vessel, and that such persons would be more appropriately seated towards the middle or rear of the vessel.

It was also said notices to this effect should be displayed on board.

[4] The appellants were convicted under the Maritime Transport Act charge, it being considered the prosecution had failed to establish the knowledge component of the Health and Safety in Employment charge.¹ The appellants, seemingly jointly, were ordered to pay $32,630 in reparation. Seafort Holdings Ltd was fined $55,000 and

_{Mr Prentice was fined $5,500. The appellants appeal conviction and sentence.}²

Facts and context

[5] Spinal injuries are a recognised inherent risk in this type of activity. The most common cause is when a seated passenger’s bottom leaves the seat and then crashes back into it. In 2009 Maritime New Zealand conducted a safety investigation into the highspeed passenger boats operating out of Paihia. The immediate trigger was an injury similar to what occurred on the present occasion. Maritime New Zealand noted, however, it was aware of seven further such incidents in the 10 years that these boats had been operating.

[6] There were two boats operating at the time, including Mack Attack, which is the boat operated now (but not then) by the appellants. Each boat’s design was analysed in the Report. The following explanation of the back injury risk sets the context for the issues that arose in this prosecution:

21. Shocks and vibrations resulting from the impacts between a boat’s hull and the sea are transmitted through its deck and seats to the passengers and crew. The size of the shocks experienced by people on board a boat are significantly magnified when their bottoms leave the seats and then land as the boat rises up towards them.

¹ Maritime New Zealand v Seafort Holdings Ltd and Prentice [2018] NZDC 3124.

² Maritime New Zealand v Seafort Holdings Ltd and Prentice [2018] NZDC 4600.

22. The human spine is at its strongest in the standing posture, when it assumes a natural S shape and can readily support the weight of the trunk and head as well as additional loads applied along its axis. An evenly distributed gap is maintained between the vertebrae by its discs, and maximum support is offered by the trunk and abdominal muscles. The spine is weaker in the seated position, when it assumes a slumped posture, and many of the muscles supporting the trunk cannot function effectively.

23. During axial loading the body’s centre of gravity moves forward, increasing the risk of the spine bending forward (forward flexion). It is the combination of the flexion of the spine and the axial forces applied that causes contact between the vertebrae and results in fractures due to the wedging effect.

24. If a twist or bend is introduced to the lower back region the risk of this type of injury is further increased. Research indicates that the introduction of a twist can reduce the mechanical strength of the vertebrae/intervertebral disc unit by about one third.

[7] The seating on the boats was analysed, with the report noting that each boat had a one size fits all model of seating.³ It was noted that if regard were had to body type, strength and experience when seating passengers, the risk of injury could be reduced. The Report does not explain what body type should go where.

[8] Overall, the Report concluded that the seat design and deck layout was questionable.

[9] Around 2009 other issues arose with the operation of Mack Attack. This led to it being suspended from service. Consequent upon that, the boat was entered onto the books of a new Safe Ship Systems Operator. These businesses operate safe ship systems, and carry out audit functions. Every vessel is required to be associated with such an enterprise. Part of that audit exercise is the preparation of a Safe Ship Management Manual for the particular vessel. In the case of Mack Attack, once this was done, Maritime New Zealand considered it necessary to conduct its own assessment before allowing the service to recommence. This exercise was carried out by two people, one of whom was to be a witness for the defence in the prosecution

_{(Mr John Whiteley).}

³ This aspect of the Report is confused. The other boat had various types of seat.

[10] It appears there had been further issues with back injuries, and so seating was a particular focus of Maritime New Zealand’s review. It was noted that the front rows had been changed to be “spring dampened”, meaning they were affixed to the floor by a D type spring. The seating on the rest of the boat remained non-sprung solid fitting.

[11] A test run was conducted using Maritime New Zealand personnel. It covered all aspects of the operating procedure which was carried out in accordance with the Safe Ship Manual. Some suggested improvements were identified. The key recommendation was that the wearing of seat belts is critical, and the suggested improvements related to methods of checking the belts were properly fastened. It was noted the maritime investigation team still had reservations about the seats in the sense that there was no evidence to prove they were safe.

Present case

[12] For purposes of analysis it is convenient to put to one side the proposition that notices needed to be put on display. That charge raises the same issue as the claim there was a need for oral instructions.

[13] The charge is that the defendants:

(a) omitted to tell passengers who are “older” or “overweight” that there was a heightened risk of back injuries resulting from jolting if they are seated in the front seats; and

(b) this failure created unnecessary danger or risk presumably to those passengers if sitting in the front rows by not providing them, it is said, with information that might cause them to choose a different seat.

[14] The defence contested each aspect, claiming that there was no greater risk to anyone in the front seats. There were two strands to this argument:

(a) first, that it cannot be shown that there is greater risk to front row passengers; alternatively,

(b) if there is, that risk was mitigated by the use of the D spring seats which meant for Mack Attack there was no greater risk.

Intuitively, the first proposition was a difficult one for the defence since presumably it had installed different seating in the front rows for a reason.

[15] The prosecution called Mr John Harrhy, a naval architect of 50 years’ experience. His work involves the design and testing of vessels including analysing their motion. His general thesis was that vertical acceleration is generally greater at the front of a boat than in the middle or back. This was the case with the seating arrangement on Mack Attack. Using two different simulation models, he assessed the difference at 40 to 60 per cent.

[16] The defence called Mr Whiteley who had done the check for Maritime New Zealand back in 2010. He confirmed his comments in the report that he had experienced little difference in movement from sitting front, middle or back on the trip he undertook. The evidence suffers, of course, from the obvious fact he cannot be sitting in both a front seat and a back seat at the same time. The defence also called an expert, Mr Adam Brancher. He is a marine surveyor. He is experienced in vessel survey and safety. He had been involved in work assessing the fresh safety and technical challenges presented by high speed craft.

[17] Mr Brancher agrees that vertical acceleration is greater the further from a vessel’s centre of gravity a person is positioned. Mr Brancher disagrees with

Mr Harrhy’s assessment in that he considers it fails to factor in the type of foils on the boat and the impact of the sprung seating. In his opinion Mr Harrhy’s theoretical modelling, though sound in theory, lacked empirical testing to confirm its validity.

[18] Mr Brancher also queries the focus on vertical acceleration as it is only one form of movement typically experienced in these situations. Moving forward or twisting are other possibilities. Mr Brancher said that because of the variables in boats in how they are built and set up, it was important to only compare like with like. In his experience one needs to test the boat under the same load, and the same speed, and with what are believed to be comparable sea conditions. His overall conclusion is that

it cannot be said with confidence that on all trips one seat poses greater risks than another.

[19] The Judge did not engage with this conflict in evidence. His Honour observed:

[65] There has been some conflicting evidence on the relative stresses to which a person seated at the front or rear of the vessel might have experienced but I accept that stresses would have been greater at the front, this having been clearly recognised by the defendants who had those rows of seats appropriately sprung (whether that was in fact appropriate has been a matter of some debate, but the risk was clearly recognised).

[20] I accept the appellant’s criticism that this is insufficient reasoning on a critical issue. It is important to recall that the charged deficit is first dependent on there being greater risk for those seated in the front seats. The Court’s observation that the risk is self-evident from the fact of different seating does not address the evidence that the different seating neutralises the risk. That is its point.

[21] It is difficult on appeal to undertake an initial assessment of the respective merits of the competing evidence when one has not heard all the evidence nor had the opportunity to clarify matters. For reasons that will shortly be apparent, I do not need

to make that assessment. However, I observe that on the written record I find it hard to conclude other than that Mr Brancher’s evidence at least raises a reasonable doubt that such a warning would be sound. I do not overlook that some of the appellants’ own documentation appears to accept the premise, but when prosecuted in relation to the point, they are not bound by what they say are previous incorrect assumptions.

A different focus

[22] The focus of the parties, as discussed, was on whether there was greater risk to people in the front seats. That, however, is not the charge. Rather, it is said the defendants breached their duty because people who are older or overweight should have been told they were at greater risk. The allegation is not about the heightened risk generally, but about a heightened risk for specific types of people.

[23] There is a dearth of evidence concerning this aspect. It is unclear why specific warning was needed for them. Presumably the theory is that because of their status as

older or overweight, these people have characteristics that carry greater risk when exposed to the allegedly heightened movement of the front seats. However, what those characteristics are is elusive, and not established by the evidence.

[24] The terms of the suggested mandatory warning are perhaps surprising in that “older” and “overweight” are unclear terms. “Older” is plainly in the eye of the beholder, and one would expect a more concrete criterion, such as identifying a particular age. If identifying an age is not justifiable on the evidence, then it would suggest “older” does not capture the characteristic being targeted.

[25] Likewise, it must be that being overweight is believed to be associated with characteristics that are a concern – perhaps less mobility, or something. Otherwise it seems to make little sense as a criterion. An overweight (by what measure and how much overweight?) person of say 1.6 metres may weigh less than a not overweight person of 1.8 metres. If actual weight is not the issue, it is again unlikely that “overweight” is the correct term. It must be that there are characteristics associated with being overweight that are the concern, and if that is so, one would expect those to be identified. Could a not overweight person also have the characteristic, and if so should not they also be told?

[26] I do not consider the evidence at all establishes why these groups had to be warned such that the failure to do so constituted a breach of the Maritime Transport Act. Notwithstanding the various reports and audits that have occurred, it is accepted that this charge is the first time it has been suggested that this step of warning specified groups was needed, or that the absence of such a warning created an avoidable danger. That is not of itself fatal to a successful proposition but it is surprising if the underlying proposition is valid.

[27] I accordingly conclude that the evidence does not establish that the appellants caused unnecessary danger by not telling older or overweight passengers that they were at greater risk by sitting in the front seats. First, the evidence about the increased dangers of the front seats is contestable. The Judge did not provide reasons why he preferred the evidence of the prosecution expert, nor expressly consider some of the contrary evidence. Even if the prosecution established that aspect (about which I hold

a doubt), the evidence is insufficient to establish that an even greater risk is faced by those identified in the charge – older or overweight passengers. It follows that the failure to warn such people has not been shown to have created unnecessary risk or danger.

[28] Given this finding, it is unnecessary to consider the appellant’s alternative ground that the District Court failed to consider what is submitted by the defence to be a valid absence of fault defence. It can be observed, however, that if the need for the warning were established, it is difficult to imagine that one could show an absence of fault in not giving it. The legislative framework makes it plain that the mere fact that the duty is not expressed in the Manual does not absolve one of the responsibility.

[29] I also consider the charge as framed had other difficulties around the issue of unnecessary danger. The prosecution theory is that these two groups are at greater risk by sitting in the front seats. Further, that if they move to different seats, the heightened risk is removed. The level of risk then becomes the same as for every passenger. The obvious answer would seem to be to make them sit in the other seats. It could be argued that giving them a choice to remain (the effect of the alleged duty), when the safer seats were readily available, itself created unnecessary danger.

Conclusion

[30] The appeal is allowed. The convictions, sentence and reparation orders are quashed.

Simon France J