Warning: The legal responsibilities and obligations of Senior Persons

02 June 2016 / by the GAA team / Adventure, Governance, Legal, Overview, Safety
Remember: The law is not the same as justice

Always remember: The enforcement of laws is not always balanced by the administration of  justice

Recently, a helicopter was involved in an accident.  The owning company operated under a Part 135 AOC and had its exposition written by an external contractor who subsequently became the company’s QA Manager.  That manager lived far from the company and was not always at the operational base.

After the accident, he received from the CAA prosecution notices relating to the accident, notifying charges laid against him under the Health & Safety Act.

It is clear from this that Senior Persons employed by companies are likely to be prosecuted if the company is involved in an accident and the manner in which those persons have carried out their responsibilities has, in the eyes of the CAA, been unsatisfactory or negligent.

Many operators employ QA managers who are not often on the premises but exercise oversight through periodic visits and internal audits.  If the CAA believes that they have not satisfactorily fulfilled their duties, and an accident has happened, they are likely to be prosecuted. Even if a court ultimately finds the person innocent, the defendant will still face heavy legal expenses.

The generic wording of court charging documents illustrates the broad-brush charges that can be used under the Health and Safety Act, which the CAA appears to be exercising with vigour:

1) Being an employer, did fail to take all practicable steps to ensure that action or inaction of any employee while at work harmed any other person.

 Maximum penalty – A fine not exceeding $250,000.

 2) Being a self-employed person, did fail to take all practicable steps to ensure that no action or inaction of the self-employed person while at work harmed the self- employed person or any other person.

 Maximum penalty – A fine not exceeding $250,000

 A similar threat exists for named directors of companies who might have thought that, because they only fulfilled “clerical duties”, they would be exempt from prosecution. As a result of the “Easy Rider” commercial fishing vessel prosecution under the Health and Safety Act, it has been shown that such a person cannot abdicate those responsibilities.

3) Being an officer or director of a company, did direct, authorise, assent to, acquiesce in, or participate in the failure of that body corporate to take all practicable steps to ensure that no action or inaction of any employee while at work harmed any other person.

 Maximum penalty – A fine not exceeding $250,000

It is now time to examine your risk of prosecution, bearing in mind the provisions of the Health and Safety at Work Act 2015.

Ask yourself: “Am I comfortable in continuing in that role? And do I have sufficient liability cover?”

It is to be hoped that Senior Persons (and particularly QA managers) will be prepared to continue with their duties but carefully review their level of oversight – bearing in mind the legal repercussions, should they err. More specifically, those who assist the company from outside and agree to assist in an effort to be helpful should make a determined effort to thoroughly understand their duties and take a firm stand if the company is not performing as it should.


Outcome of the Easy Rider commercial fishing vessel which sank in Foveaux Strait in March 2012

Comment by Angela Beazer on the prosecution of Ms Davis as a director, and implications for aviation businesses

Gloria Davis

Gloria Davis

The Court acknowledged that it had some sympathy for the position Ms Davis found herself in, and that this would be taken into account at sentencing. However, Ms Davis was the sole director of the company, and for maritime law purposes she carried many of the legal responsibilities for compliance with the safety requirements of the SSM certificate and was the nominated fit and proper person for the organisation. Thus, the Judge stated, Ms Davis was “held out by the company as the person responsible for both the safety on the boat and compliance with the [law]”.

The Judge went on to acknowledge:

“In practice, she did not fulfil those roles. They were left to Mr Karetai, he skippered the boat and he made the relevant decision in regard to the operation of the boat. Regrettably, that is not an excuse. A person with such responsibilities… cannot abdicate those responsibilities and suggest, as here, that she fulfilled only clerical duties”.

Although the level of involvement and knowledge of Ms Davis in this case might be greater than in other cases, the above comments could equally apply to a number of small aviation businesses, particularly husband-and-wife-owned businesses, who view one business partner as merely an office holder “on paper”.

The law does not make such a distinction. Workplace health and safety laws are also being strengthened, and more stringent duties will attach to directors and senior officers of companies than that which Ms Davis has been prosecuted under.

I cannot stress enough that small aviation businesses in a similar position should review the legal structure, and in particular the designated legal responsibilities of officers of the business, to avoid unintended consequences arising for a non-active partner, in the event that something goes wrong.

Please visit Angela’s website at http://www.amclegal.co.nz/articles, workplace health and safety issues, to read more about this.