Boat operator's conviction for incident where passenger broke her back overturned

Saturday, 20 October 2018

A passenger broke her back on board the catamaran Mack Attack as it approached Cape Brett in the Bay of Islands (file photo).

The operators of a Bay of Islands tourist boat fined after a passenger broke her back on a trip have had their conviction and penalty overturned by the High Court.

Seafort Holdings Limited and its sole director and shareholder, Richard John Prentice, were earlier this year ordered to pay more than $93,000 after the 60-year-old passenger's back broke when the vessel hit a large wave.

The incident occurred on October 18, 2014 as the catamaran, Mack Attack, approached Cape Brett in Northland's Bay of Islands.

Prentice was the master of the vessel, which can reach speeds of up to 100kmh.

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The catamaran struck a large wave and landed heavily, the trial in Auckland District Court was told.

Raewyn Russell and her husband Craig Russell were sitting in the front row of seats. Russell was thrown forward and, when landing back in her seat, heard a loud crack and doubled over in pain.

She was taken to Bay of Islands Hospital where she was found to have a fracture in her eleventh thoracic vertebrae.

Maritime New Zealand investigated and both Seafort Holdings and Prentice were charged under the Maritime Transport Act with omitting to do an act that caused unnecessary danger or risk to any other person.

They were found guilty at a trial. Seafort was fined $55,000, Prentice was fined $5500 and they were ordered to pay $32,630 in reparation to Russell.

Prentice and Seafort appealed the conviction, and in a just released judgment, the High Court has quashed the conviction, sentence and reparation orders.

Justice Simon France said the charge the defendants faced was that they failed to tell 'older' or 'overweight' passengers that there was a heightened risk of back injuries resulting from jolting if they were seated in the front seats, and that this failure created unnecessary danger or risk to those passengers.

In his decision, Justice France said 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.

'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.'

Cathy Cooke's back was broken in a December 2010 incident aboard the same tourist boat.

Justice France said that '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?'

He said did not consider the evidence at all established why these groups had to be warned, such that the failure to do so constituted a breach of the Maritime Transport Act.

'The appeal is allowed. The convictions, sentence and reparation orders are quashed.'

It was not the first time that Seafort had been fined over an incident on board the Mack Attack.

In 2010, 53-year-old Cathy Cooke was left paralysed after the boat hit a wave and she was thrown to the floor.

Cooke said she was not told to put a safety belt on before she was injured.

Seafort was ordered to pay Cooke $90,000 compensation for that incident.

The firm was also fined $20,000 for failing to take steps to ensure its passengers were safe and $10,000 for failing to notify authorities of the accident.