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An adventure company has admitted a raft of failings over a quad bike safari in which an Australian woman suffered a fatal injury, but denies it should be charged under workplace health and safety laws.
The now-collapsed Riverland Adventures faces a maximum fine of $250,000 over the death of Melbourne woman Chelsea Callaghan, who spent 10 days on life support after coming off a quad bike near Port Waikato in October 2012.
At a defended hearing in Manukau District Court today lawyer for Riverland Adventures, Paul White, said the company "accepted" evidence by WorkSafe New Zealand which listed a catalogue of failings, including defective quadbikes, inadequate safety helmets, and a lack of supervision and an emergency plan.
The quadbikes also did not have a warrant of fitness to be driven on public roads. The bike Ms Callaghan was riding was also unregistered.
However, Mr White argued that because the crash took place on a public road, it did not constitute the company's "place of work", and it could therefore not be held liable.
But counsel for WorkSafe NZ, Rebecca Denmeade, said the quadbikes themselves and a "geographical bubble that encompasses the quadbike tour" made up the place of work, whether that was a public road or private farm.
The quadbikes and safety on the tour were "sorely inadequate", she said, and the company had "failed to undertake the practicable steps to ensure Ms Callaghan was not harmed as a paid participant in an adventure tourism activity".
"An Australian tourist who comes to New Zealand on holiday and pays to undertake an adventure tourism activity is entitled to be safe," she said.
But Mr White branded her 'bubble' analogy "nonsensical", questioning where the bubble begins and ends, and "how high does it go".
A company could not be regarded as being "in control" of a public road, and therefore responsible for a crash if it occurs on that road, he said.
However, Judge Charles Blackie questioned his argument, saying: "The lay person might think it's a bit artificial when a quad bike operator can be responsible for [a crash on] his property but can't be held responsible if he ventures out on public roads."
The bike itself had caused the hazard, he said, based on expert evidence submitted by WorkSafe NZ which found it was "mechanically defective and had not been properly maintained", citing problems with the brakes, tyre pressure, and throttle cable.
It was also revealed that four children taking part in the safari had been riding on the back of the adults' bikes, which was not permitted under the law.
However, WorkSafe NZ had not pursued it as part of the charges because Ms Callaghan did not have a child on the back of her quadbike.
Riverland Adventures is currently in liquidation. Its former owner-operator Percy Kukutai was charged with manslaughter but this was withdrawn last November.
Judge Blackie reserved his decision.
- By Patrice Dougan of APNZ