By Dr. Laura Sowden, Partner, and Annabel Cheung, Lawyer

In 2019 the Whakaari / White Island eruption killed 22 tourists and workers. As we head into the holiday season tourists and tourism businesses need to be more vigilant than ever. Natural disasters can give rise to WHS charges. The Auckland District Court found a failure by the company, convicted the company and will come back about penalty.

The Background

Whakaari Management Ltd (WML) that managed the New Zealand volcanic island Whakaari / White Island that erupted and tragically killed 22 tourists and workers in 2019 faced safety charges.

WML has now been convicted of a safety offence and awaits sentencing.

What the Court said

The Auckland District Court recently found that WML contravened workplace health and safety duties. Specifically, this included a failure to respond to an eruption in April 2016 and reconsider the risk assessment processes in place.

Judge Thomas found WML guilty of breaching s 37 of the New Zealand Health and Safety at Work Act 2015 (the Act).

Section 37 outlines the duty of PCBU who manage or control the workplace.

Section 37(1) A PCBU who manages or controls a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person.

An earlier April 2016 eruption occurred:

• at a time when the volcano was classified as inactive and therefore the eruptions could not be predicted; and
• at night when no one was around.

Judge Thomas considered that it should have been very obvious that any risk assessment and risk management process in place in April 2016 had failed. There were no means to prevent serious injury or loss of life at the time.

Reasonably practicable steps

Judge Thomas noted WML

“should have appreciated it could no longer rely on risk assessment work being done by others to relieve it of its own obligation in relation to risk”.

Serious re-evaluation needed to occur post April 2016.

Judge Thomas concluded that there was a “major failure” to take a reasonably practicable step during the period of the first eruption in April 2016 to the devastating second eruption in 2019.

A reasonably practicable step would have been for WML to:

“engage volcanology and health and safety expertise to fully understand what its obligations were and to ensure that it was doing what was necessary to meet them”.

WML’s argument

WML’s argument contemplated the meaning of a “PCBU who manages or controls a workplace” under s 37 of the Act.  WML argued that it did not manage or control any workplace on Whakaari in any way that was captured by the charges, as WML had licensing arrangements with companies that provided the tours to visitors on Whakaari.

Judge Thomas found that PCBU must exercise active control or management of a workplace in a practical sense and considered that WML was more than a “passive landowner” noting that “WML was proactive in setting conditions and access to Whakaari”.  WML had the ability to control access to the workplaces on Whakaari as it could terminate or threaten to terminate the licence agreements with any breach.

WML further argued that it had satisfied any obligation under the Act as it had obtained advice on volcanic activity from the Institute of Geological and Nuclear Sciences Ltd (GNS).

Judge Thomas held that a PCBU’s duty under the Act is not transferrable and that,

“the information provided by GNS and WML’s engagement with GNS was insufficient to relieve WML of the need to ensure the necessary risk assessments were done”.

The information GNS provided to WML was considered to be ad hoc, infrequent, unstructured, informal and incomplete and did not relieve WML of its obligations under the Act.

What does this mean?

Judge Thomas will address sentencing later for WML, however, the Judge noted:

“…WML faces significant jeopardy in respect of charges of this kind. The maximum fines themselves are significant. Importantly, this was an event that caused devastating harm. There is a high public interest in ensuring a prosecution fairly goes ahead.”

The maximum fine for a breach of the s 37 duty which resulted in a risk of death, serious injury or serious illness is NZD 1.5 million.

In NSW, s 20 of the Work Health and Safety Act 2011 (NSW) comparably outlines the same duty of PCBU who manage or control the workplace.

Section 20(2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

The laws recognise that it is sometimes not possible to eliminate a risk, or control a risk in certain ways. However, a PCBU must do what is reasonably practicable to minimise the risk.

From the above decision it is made clear that reasonably practicable means what is reasonably able to be done by taking into account the following:

• The likelihood pf the hazard or the risk occurring;
• The possible consequences and degree of harm from the risk;
• What should be known about the hazard/risk and ways of minimising the risk;
• The controls available to minimise the risk; and
• After an assessment, the costs associated with available ways to minimise the risk, including whether the cost is grossly disproportionate to the risk.

Tourism operators need to be vigilant, work with others in workplaces to do what is reasonably practicable and importantly consider change in the environment and adjust practices accordingly.

Others charged

Due to the incident and steps taken or steps not taken a range of operators to Whakaari were charged and convicted:

• Inflite Charters Ltd has pleaded guilty and been sentenced.
• Institute of Geological and Nuclear Sciences Ltd have pleaded guilty and are awaiting sentence.
• White Island Tours Ltd have pleaded guilty and are awaiting sentence.
• Volcanic Air Safaris Ltd have pleaded guilty and are awaiting sentence.
• Aerius Ltd have pleaded guilty and are awaiting sentence.
• Kahu NZ Ltd have pleaded guilty and are awaiting sentence.

WorkSafe New Zealand v Whakaari Management Limited [2023] NZDC 23224 (31 October 2023)