The passenger pulled him by his feet to the surface and both men held on to the ring, quickly losing sight of the Bandit as they drifted down the coast for up to 3km.
The pair floated for up to 45 minutes in the freezing water, with waves breaking over them, before being rescued.
After being pulled from the water, the man spent days in hospital with hypothermia.
The fishing charter company, Cascade Charters Ltd, and its skipper, Philip Magee, were sentenced in the Tauranga District Court late last year for failing to ensure the health and safety of passengers.
The judge’s sentencing notes were recently released to NZME.
Cascade Charters Ltd defended a charge, laid under the Health and Safety at Work Act 2015, at a nine-day judge-alone trial but was found guilty of having a duty to ensure the health and safety of its passengers and failing to comply with that duty.
Its failure exposed the passengers on board the Bandit to the risk of serious injury or death.
Magee pleaded guilty on the morning of trial to his own charge – of being a worker who had a duty to take reasonable care that his acts or omissions did not adversely affect the health and safety of the passengers.
A swell, a pitching boat and an unsecured seat
It was about 7.30am on August 1, 2021, when the fishing charter set out from the Whakatāne Harbour.
There were 14 people on board and the passengers had been given a safety briefing before they left.
No one was wearing a lifejacket but they were told some were available.
Earlier that morning, an advisory had been broadcast over radio that the Whakatāne River bar was unworkable, and a bright orange wind buoy was raised on a mast at the entrance to the harbour.
The Bandit safely crossed the bar as it headed out but throughout the morning, various vessels abandoned their attempts to cross, communicating the conditions to the Coastguard over the radio.
A view over Whakatāne Heads taken from a lookout above the harbour.
By the time the Bandit left its fishing ground, about 12.30pm, to return to Whakatāne, the swell had increased.
While it was crossing the bar, a large wave caught up with the Bandit, causing it to broach heavily to starboard.
An unsecured seat that passengers were seated on was thrown to the starboard side, pinning a passenger to the side of the vessel.
The skipper, Magee, remained in the wheelhouse to get the Bandit out of the bar, while passengers assisted each other with injuries.
The Coastguard came to help, taking some passengers back across the bar into the harbour.
The impact on the passengers
All the passengers were given permanent name suppression but provided victim impact statements to the court.
The 79-year-old, who by the time of sentencing was 82, spent two days in intensive care being treated for hypothermia and another four days in hospital, including time spent on an antibiotic drip.
He has had heart arrhythmia since the near-drowning and has had to employ people to do physical work he previously did himself.
In his victim impact statement, he said he believed he would have died if the other passenger hadn’t jumped in to help him.
After being released from hospital, he gifted the passenger $10,000 for putting his own life at risk to save him.
He had ongoing anxiety and difficulty sleeping.
The passenger who jumped in to help him said he was previously an “outdoors person” but was now reluctant to go fishing or diving, feeling “triggered” when fishing in Whakatāne.
He gets flashbacks, and wakes in the night covered in sweat after having nightmares about the ocean.
He told the court he pushed his body to the absolute limit during the rescue and nearly had to let go of the 79-year-old.
He said jumping in after another passenger was the “single scariest thing he has had to live through” and found it hard to concentrate when he returned to work, three weeks after the incident.
Another passenger’s leg had become trapped, before he fell overboard, and after being rescued from the water and taken to Whakatāne Hospital he was found to have a fractured ankle. He had also torn three ligaments in his knee.
He held on to a surfboard for up to an hour before he was rescued by a small fishing boat, which transferred him to the Coastguard vessel, where he was treated for hypothermia.
He had ongoing issues with blood clots in his legs after the incident and now has to take medication, which he’ll have to take for the rest of his life, to prevent the recurrence of blood clots.
He also suffers flashbacks and has disrupted sleep.
Another passenger suffered broken ribs and bruising, while others had ongoing psychological impacts including issues with sleep and anxiety.
Judge: ‘Obvious and well-known hazards’
The judge concluded that it was “reasonably practicable” for Cascade Charters to ensure the skipper knew passengers should be wearing lifejackets while crossing the bar.
He also found they should have ensured the seat was fixed to the deck, and their failure to do so exposed passengers to risk of death or serious injury.
He agreed the risk of serious injury was obvious for a vessel crossing a known hazard – the Whakatāne River bar.
It was also reasonably practicable for Cascade Charters to ensure the skipper understood and followed safety procedures and was aware of what was expected when navigating the hazard.
For sentencing, Maritime New Zealand provided Judge Lawson with a table that outlined reparation payments.
It listed reparation sought for each passenger, for items like cellphones, fishing rods, time off work and physiotherapy.
The judge acknowledged that Cascade Charters Ltd had made a voluntary offer of $95,000 reparation, for both consequential loss and emotional harm.
He ordered the company to pay a total of $130,362.49 in reparation, however.
This was comprised of $8362.49 for consequential loss and $122,000 in emotional harm reparation.
The emotional harm reparation included $30,000 to the 79-year-old who went overboard, and $25,000 and $20,000 to the other passengers who were thrown into the water.
The man who jumped in to assist was given $15,000.
When it came to assessing the appropriate levels of fines, Judge Lawson said he agreed with prosecutor Ben Finn that Cascade Charters’ omissions were “obvious systemic failures, the hazards well-known and serious, and the means of prevention simple and inexpensive”.
He was prepared to accept there had not been “deliberate disregard for safety”, but rather “an absence of effective training and induction, and assurance mechanisms that resulted in failures of duty at an organisational level”.
While there had been a systemic failure at an organisational level, the skipper was the person who had the day-to-day responsibilities, and his failures “had a clear impact on the passengers he was responsible for”.
Judge Lawson set the starting point for fines for Cascade Charters at $400,000, and $40,000 for Magee.
The judge agreed there were discounts available for Cascade Charters for previous good character, including its reputation in the community – particularly assisting in rescue efforts.
It had also made corrective efforts since the incident.
Magee had written a “detailed letter of remorse” and had warned other skippers about the risks of crossing the bar.
His remorse justified a discount of 5%, while the work he’d done with the Coastguard to educate others meant he was given a further 5% discount.
He also got a 10% discount for his guilty plea, which was entered on the morning of trial.
This meant the fines proposed were $320,000 for Cascade Charters and $30,000 for Magee.
However, these fines had to be adjusted to reflect the parties’ financial capacity and ability to pay.
This was informed by submissions from Maritime NZ and led to an end fine of $25,000 for Cascade Charters and $3000 for Magee.
Cascade Charters was also ordered to pay $60,000 towards the costs of Maritime NZ’s prosecution.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.
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