Litigation, Disputes and Employment
Whakaari Management Limited (WML) has successfully appealed and had its conviction quashed in the High Court at Auckland, following its conviction under s 37 of the Health and Safety at Work Act 2015 (HSWA) in the District Court at Auckland. WML was charged in the wake of the volcanic eruption of Whakaari White Island (Whakaari) which resulted in the death of 22, and injury of a further 25 visitors participating in walking tours on Whakaari on 9 December 2019.
In convicting WML in the District Court, Judge Thomas had determined that WML had breached s 37 of the HSWA in failing to ensure that, so far as was reasonably practicable, Whakaari as a workplace was without risks to the health and safety of any person. Judge Thomas considered that WML engaged s 37 on the basis that it had management and control of Whakaari as the workplace because it was more than a passive landowner; it granted and set conditions for access to tour operators. Judge Thomas further considered that WML had breached that duty because it failed to assess and manage risks, namely by failing to obtain a risk assessment from the Institute of Geological and Nuclear Sciences (GNS) or to otherwise engage with experts to understand and mitigate the risks associated with volcanic activity on Whakaari.
WML appealed its conviction, and the High Court heard WML’s appeal in late October 2024. In the Court’s recent decision, Justice Moore quashed WML’s conviction, disagreeing with Judge Thomas’ determination in respect of WML’s duty under s 37. In summary, Moore J found that WML did not in fact have a duty under s 37 of the HSWA, because it had no ability to influence or direct the tour operators’ activities in actually carrying out their work in conducting the tours. Therefore, WML could not have active management and control of Whakaari as a workplace as required by s 37.
The section 37 duty
In its decision, the High Court determined that the duty under s 37 is triggered by active management and control in a practical sense, not merely the ability to exercise some level of management or control. Moore J observed that Parliament deliberately limited the scope of s 37 to exclude PCBUs that might otherwise be captured due to possessing some element of management or control as landowners, but who do not otherwise have active control.
In applying this principle, the Court considered that once access to the land was granted by WML, then as Whakaari was bare land, there was nothing for it to manage or control other than the walking tours themselves. WML did not have the ability to manage or control what happened on the walking tours after access had been granted. While WML had the power to terminate access, there was nothing in the licence agreements that gave it the ability to direct or control what happened on Whakaari on a day-to-day basis, or to control or influence the running of the tours. It followed that as WML did not have active management or control of the workplace, it had no duty under s 37.
Breach
The Court further found that even if WML did have a duty under s 37, it was not reasonably practicable for WML to obtain its own risk assessment.
WML’s business was that of a landowner permitting access to adventure activity providers to undertake their activities on WML’s land, for a price. It was a consequence of the activity (walking tours) that people were exposed to the risk of volcanic eruption, so the risk arose from the work activity, rather than the workplace. The primary duty to obtain a risk assessment lay with the activity provider, who was best placed and qualified to make the required assessment based on their knowledge and expertise; not the landowner.
The Court also considered that WML was reasonably entitled to rely on Emergency Management Bay of Plenty’s (EMBOP) Emergency Response Plan for Whakaari, and WorkSafe’s adventure activity certification of White Island Tours. Essentially, WML was entitled to trust that EMBOP and the Emergency Response Plan had adequately appraised the risks related to Whakaari, including those to the public at large, and had their bases covered. It was also entirely reasonable for WML to rely on the fact that White Island Tours had twice been successfully audited and certified under the Adventure Activity Regulations by WorkSafe-approved auditors. Fundamentally, the purpose of those audits was to provide assurance that the operator’s operations were safe. In the absence of any knowledge that the audits were deficient, Moore J did not consider that WML should have been expected to second guess them. Essentially, it was not unreasonable for WML to think that adequate risk assessments had been undertaken by others and could be relied on.
WML’s appeal and subsequent acquittal means that of the six defendants that were prosecuted by WorkSafe under HSWA in the wake of the Whakaari eruption, and proceeded to defend their charges at trial, all have now been acquitted. As counsel for one of the other successful defendants, ID Tours Ltd, and instructing solicitors for WML and the Buttle family at trial, this is a satisfying result for our team. However it is not yet clear whether WorkSafe will appeal the High Court’s decision in this case.
There were six other defendants (essentially the tour operators or providers and GNS) who pleaded guilty prior to trial and have been fined. The two defendants who had tourists on the Island at the time of the eruption (White Island Tours Ltd and Volcanic Air Safaris Ltd) were ordered to pay reparation to the victims and their families, totalling around $5.3m.
If you have any questions regarding this decision, or PCBUs’ and landowners’ duties under the HSWA, please do not hesitate to contact out Health and Safety team, led by David Neutze and Stephen Corlett.
