A company has been fined $595,000 after a court found it responsible for the death of two of its customers due to multiple health and safety failures
What was supposed to be a 50th birthday celebration turned to tragedy, when two British tourists lost their lives in March 2019 while on a bespoke tour operated by Prestige Adventure.
As part of the tour, the group were set to undertake a coast-to-coast off-road driving component, led by company director John William Neil Thomssen.
The victims were travelling second in a convoy of five vehicles, led by Thomssen, along a track on the Kakanui Ranges that had a steep drop off the right-hand side.
The wheels on the right-hand side of their second vehicle (a side-by-side off-road machine) crossed the tracks causing the vehicle to over-balance and the two men to fall more than 80 meters. They died instantly.
A WorkSafe investigation found multiple health and safety failings by Prestige Adventure and Thomssen. The business had no documented training processes and no operations manual in relation to the tour.
While the tour group had undertaken basic training before commencing the trip with Thomssen, WorkSafe’s investigation found that this training had only lasted around 15 minutes and the practice terrain in no way resembled the hazards that the group would face while on the tour.
While the adventure operator had assessed the terrain for the tour by helicopter, nobody had travelled the actual route in the off-road vehicles the group would be using.
The off-road driving element of the tour was set to pass through a several high-country stations and Department of Conservation land. Mr Thomssen had been explicitly denied access to the farmland that the fatal incident occurred on.
WorkSafe also found that Prestige Adventure was not a registered Adventure Activity operator, even after knowing that this was a necessary legal requirement under the Health and Safety at Work (Adventure Activities) Regulations 2016.
“There is no excuse for Adventure Activity operators not to register with WorkSafe New Zealand”, says WorkSafe Area Investigation Manager Steve Kelly.
“When operators are registered, that is an assurance to members of the public that the business’ health and safety practices are appropriate.”
“Two men lost their lives as a result of Prestige and Thomssen’s failure to keep them safe. The impact on their families and friends will last forever and would have been avoided had the company and Thomssen not failed in the very basic duties required when people put their lives in their hands.”
Prestige Adventure was fined $595,000. Although it should be noted the company was no longer trading and was expected to go into liquidation.
While the judge would have ordered reparation in the vicinity of $230,000 due to the financial position of the company and Mr Thomssen the only reparation ordered was $100,000. That figure being the amount that Mr Thomssen had been able to set aside from his personal finances Thomssen would have faced a fine of $30,000 but due to his financial position and the priority to ensure that reparation was to be paid no fine was imposed on him.
Charges
Prestige Adventure Limited
- Prestige Adventure Limited were sentenced in the Timaru District Court on 29 November 2021
- A fine of $595,000 was imposed
- Reparation of $100,000 was ordered to be paid by Mr Thomssen
- No order for costs was sought given the unavailability of funds from the defendants
- Prestige Adventure Limited was sentenced under sections 36(2), s 48(1) and (2)(c) of the Health and Safety at Work Act 2015
- Fine not exceeding $1,500,000
- Being a PCBU, failed to ensure so far as was reasonably practicable, that the health and safety of persons, including the victims, were not put at risk from work carried out as part of the conduct of the business or undertaking, in the course of the self-drive component of the coast-to-coast off-road tour operated by Prestige Adventure Limited, and that failure exposed the victims to a risk of death.
- Prestige Adventure Limited was also convicted and discharged under Regulations 8(1) and (3)(b) of the Health and Safety at Work (Adventure Activities) Regulations 2016
- Fine not exceeding $50,000
- Being an adventure activity operator, provided an adventure activity, being the self-drive component of the coast-to-coast tour, to participants at a time when Prestige Adventure Limited was not registered to provide adventure activities under the Health and Safety at Work (Adventure Activities) Regulations 2016 and when Prestige Adventures Limited did not hold an exemption from the requirement to be registered.
John William Neil Thomssen
- Company Director John William Neil Thomssen was sentenced in the Timaru District Court on 29 November 2021
- No fine was imposed
- The order for reparation of $100,000 was to be paid immediately by Mr Thomssen.
- John William Neil Thomssen was sentenced under Sections 45(b), 48(1) and 48(2)(a) of the Health and Safety at Work Act 2015.
- Fine not exceeding $150,000
- Being a worker of Prestige Adventure Limited, a PCBU failed to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons, including the victims, in the course of the self-drive component of the coast-to-coast off-road tour operated by PAL and that failure exposed the victims to a risk of death.
