The District Court found the management company of Whakaari/White Island guilty in relation to charges that had been brought by WorkSafe for significant health and safety liabilities it failed to uphold in the lead up to the eruption in 2019. 

After the eruption, WorkSafe conducted a widespread investigation into the conduct of various parties.  This led to the prosecution of 13 different entities.

The Company was a lessee of Whakaari/White Island, and was responsible for managing the island.  One of its key roles was entering into licences with various tour guide groups to conduct commercial walking tours of the island.

They were charged by WorkSafe with a breach of their duties as “a person conducting business or undertaking” (PCBU) on the following grounds:

  • Under section 37 of the Health and Safety at Work Act 2015 in relation to their active control or management of a workplace.
  • Under section 36 of the Act for failing to ensure that the health and safety of other persons let onto Whakaari was not put at risk from work carried out as part of the conduct of business or undertaking.

Active management of a workplace

The Company argued that Whakaari cannot be considered a workplace as the extent of its responsibilities was restricted to the ambit of a landowner.

The Judge disagreed, citing that the Company was not simply a passive landowner, but was actively managing a workplace for a number of reasons including:

  • Its licence agreements reflected that the Company was proactive in setting conditions around access to the island;
  • It was actively involved in the management of the tour operators and other relevant stakeholders during the licence; and
  • It could terminate (or threaten to terminate) the agreements for any breach of its terms.

The Judge found that the Company had breached its duty to ensure that the health and safety of persons it permitted on Whakaari was not put at risk when carrying out part of the commercial activities. 

The Company had failed to carry out proper risk assessments, and had not made reasonable efforts to engage with experts that could provide specialist advice on the potential risks.

The lack of proper risk assessments meant that the Company failed to:

  • Have facilities in place to sufficiently mitigate and manage risks;
  • Ensure that persons on the island were provided with suitable personal protective equipment;
  • Ensure that persons on the island had adequate means of evacuation available to them.

The Judge further mentioned that such risk assessments needed to be ongoing to account for the variability and unpredictability of the conditions and characteristics of Whakaari/White Island.

While the Company had consulted with a research institute to some extent regarding expert advice on the island, the Judge found this to be insufficient given it did not entirely cover the risk of operating tours on the island, and the nature of their relationship was “ad hoc, infrequent, unstructured, informal, and incomplete”; and therefore, did not suffice.

These factors amounted to a breach of the Company’s duty under s 37 of the Act.

Primary Duty of Care

The second charge alleged that the Company had a responsibility under s 36 of the Act to ensure the health and safety of employees and tourists on the island.

This failed because section 36 is only triggered when the relevant risks and hazards only arise from the work activity carried out at the PCBU’s workplace. Therefore, section 36 could only apply if the people on the island were influenced or directed by the Company. 

The Court concluded that this must fail as the Company did not influence or direct the tour operators’ activities. They did not have workers that were operating on the island, nor did they influence or direct any work that was conducted on the island.

Rather, the Company can only be responsible for any occupation hazards that arise from the activities it carries out- rather than the nature or wider categorization of the work in question.

However, the Court did acknowledge that had the operation involved a single entity that was responsible for the management of the island, the booking of the tickets, and conducting the tours, then that company would have owed duties to provide safety information to customers at the point of sale.

This judgment and the fatal eruption in 2019 provided a stark reminder for employers to adequately assess and address health and safety risks to their employees with respect to the management and control of their workplace. It is always recommended to engage professional legal advice to ensure that you and your employees are protected.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Charlotte Cameron and Raiyan Azmi