Railing collapse payout unclear
Locals who fell off the balcony of a Marlborough Sounds resort when its railing collapsed have been awarded reparation, but where the money will come from is unclear.
Portage Management Limited has been ordered to make a $60,000 emotional harm payment to three customers who fell 2 metres when a balustrade collapsed in 2017.
But as the company is in liquidation and has no assets, there is ‘‘some uncertainty’’ whether payment would be made, and if the company’s insurance policy would cover reparation.
At the sentencing in the Blenheim District Court on Tuesday, Judge Zohrab said he would not order an additional $405,000 fine, because the company didn’t ‘‘have the ability to pay’’.
Stephanie Backhouse, who prosecuted on behalf of Worksafe, said they were seeking reparation for the three customers. The fourth customer, Rod Eatwell, died in a car crash in 2018.
According to her submission, Ralph Jones suffered the most serious injuries. He fractured vertebrae, multiple ribs and his sternum, broke toes, sustained a head injury and severely bit his tongue. Jones described the pain as ‘‘excruciating’’ and spent several days in hospital.
Mike Fitzgibbon was unconscious for 10 minutes, suffered from a broken collarbone and fractured ribs. John A’hearn’s injuries were considered ‘‘less serious’’.
They were ordered $35,000, $20,000 and $5000 respectively.
Backhouse said ongoing compliance issues were ‘‘set in motion’’ when the company bought the property in 2012 and failed to undertake any form of risk assessment.
James Cochrane, who acted as counsel for the liquidators, asked Judge Zohrab for ‘‘direction’’ as to how the reparation should be processed.
In his submission, Cochrane said there were no funds immediately available to creditors, but the company’s assets included a liability insurance policy.
Under the Companies Act, reparation orders were not an admissible claim under liquidation of the company, he said.
Cochrane said unless Worksafe or the victims had made a claim in the liquidation, insurers did not have an obligation to cover it.
‘‘How it gets paid is not up to me,’’ Judge Zohrab said.
On its face, Judge Zohrab said he had been told the policy would cover reparation. ‘‘All of those matters will be determined by the policy wording,’’ he said.
The company was found guilty and convicted after a formal proof hearing in November last year. It was found to have breached the Health and Safety at Work Act.
The directors of Portage Management were Barry and Laina Walters, who purchased the premises under the Tirohanga Group. They did not attend the hearing or sentencing.
The Portage Resort Hotel was now owned by the Tourism Hotel Corporation Group.