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Our German Desk In the first case of its kind, Genera Limited has been convicted of an offence under the Health and Safety at Work Act 2015 (HSWA) in relation to an incident that occurred in international waters.
The conviction relates to failures of training and procedure that amounted to a breach of Genera’s duties under the HSWA.
The decision demonstrates that Maritime New Zealand will prosecute HSWA offences where it identifies the breach as occurring in New Zealand but the incident occurs outside of the jurisdiction.
Background
Genera Limited provides biosecurity and fumigation services, including to the New Zealand log export market. One of these services is to place “in-transit” fumigation technicians on vessels trading between New Zealand and international ports. The technicians carry out fumigation to cargo in the vessel’s holds during the voyage.
On 14 July 2021, Genera Limited appeared in the Tauranga District Court and was convicted and sentenced for failing to ensure the health and safety of one of its workers, exposing that individual to a risk of death or serious injury.
The sentencing notes record that one of Genera’s technicians fell from a log stack in a cargo hold and suffered serious injuries while working on the Panamanian-flagged Bunun Justice on 29 February 2019.
The worker suffered significant injuries, including a fractured femur, dislocated knee and damage to his shoulder and teeth. At the time of the incident, he was alone and did not have a radio with him. He was discovered 9 hours after the incident occurred.
The judgment also records that the technician did not have access to adequate first aid, including pain relief. Due to the vessel’s position, it took 3 days for him to reach a hospital in Papua New Guinea.
The sentencing notes do not record the particulars of the charge. However, from the judge’s comments and associated media reports, it appears that Maritime New Zealand alleged (and Genera accepted) that:
- Genera’s training for working at heights, in particular on log stacks, was inadequate;
- Genera did not require a “buddy” to accompany in-transit fumigation technicians when inspecting log stacks, nor did it require that technicians carry a radio;
- Genera’s Standard Operating Procedures failed to provide for an effective means of communication between Genera and its employee; and
- Genera had failed to ensure that a fully provisioned first aid kit was available to the technician on the vessel.
Genera was fined $245,000. The Court also ordered the company to pay the victim $60,000 in reparation for emotional harm, $6,089.96 in consequential losses, and half of Maritime New Zealand’s costs ($25,135.75).
Comment
This case is believed to be the first example of a prosecution being brought under the Health and Safety Work Act following injuries to a worker on a foreign flagged vessel operating in international waters.
Usually, a person or company cannot be prosecuted for an act or omission done outside of New Zealand. However, this general proposition can be altered by a clear legislative provision, such as section 10 of the HSWA which applies the legislation to a New Zealand ship, “wherever it may be”.
However, in this case, the incident occurred on a foreign flagged vessel in international waters. Section 10 did not apply. Instead, Maritime New Zealand appears to have charged Genera for failings that occurred within New Zealand (for example the training of workers and the development of procedures).
Because Genera accepted the charge, there was no argument before the Court about jurisdiction. Maritime New Zealand’s approach is therefore untested and a defendant in a future prosecution may seek to challenge this approach.
While the law in this area remains unsettled, this prosecution highlights that:
- A PCBU’s (person conducting a business or undertaking) primary duty includes ensuring, so far as reasonably practicable, the health and safety of workers who work for the PCBU. That duty requires the PCBU to eliminate or minimise risks to health and safety. A breach of that duty is an offence.
- HSWA is focused on risk. An offence can occur even where a risk to health and safety has not been realised.
- For charging purposes the location of the act or omission that gave rise to the risk will be the ‘location of the offence’. (i.e. where the alleged breach of duty took place).
If you have any questions about your health and safety obligations as a PCBU, please get in touch with our Health and Safety Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
