Owners controlled workplace used by tour companies it licensed to operate
Whakaari Island’s eruption back in December 2019 was catastrophic, killing 22 people and injuring 25 others.
A force of nature cannot be prevented, but questions and recriminations still naturally followed as to whether the human impact could have been avoided, or at least mitigated.
WorkSafe brought charges against everyone involved in tours on the island, including the manager of the island, the booking agents, the boating and helicopter companies transporting people to the island, and the tour company taking people to the crater floor.
Following a flurry of guilty pleas and a couple of dismissed charges, the only party left standing at trial was the Whakaari Management Limited (WML), which manages the island on behalf of its owners.
On Oct. 31, 2023 Judge E M Thomas issued the District Court’s trial judgment, convicting WML of breaches of section 37 of the Health and Safety at Work Act 2015 (HSWA): see Worksafe New Zealand v. Whakaari Management Limited [2023] NZDC 23224.
In short, WML managed or controlled a “workplace” and failed to take reasonably practicable steps to minimise risk to tourists and tour guides.
Workplace
Judge Thomas noted that Whakaari was owned by Whakaari Trustees Limited, which leased Whakaari to WML. WML’s responsibility was to manage the island, and it entered into licence agreements with various tour operators. This enabled those tour operators to access Whakaari for the purpose of conducting commercial walking tours on the island (i.e., work).
WML benefited from this arrangement to the tune of approximately $1 million per year in profit.
Section 37 of the HSWA provides: “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.” WML accepted that it was a PCBU under the HSWA.
WML’s defence lawyer argued that WML was nothing more than a landowner. However, Judge Thomas disagreed. He accepted that WorkSafe had established that WML was not merely a passive landowner for several reasons, including that it generated income by enabling commercial walking tours on Whakaari where the active volcano was the product, and it entered into licence agreements which gave it the ability to control access to whatever workplaces there were on Whakaari and could terminate those agreements with any breach. WML therefore owed a duty under section 37.
The HSWA provides that the duty to take “reasonably practicable” steps requires a PCBU to take into account and weigh all relevant matters including:
WorkSafe accepted that WML could not eliminate the risk of the eruption. However, WorkSafe argued that WML was required to minimise risk of an eruption to tourists and tour guides, to the extent that it could influence and control this risk and it failed to do so.
Judge Thomas agreed, commenting that a key failure of WML, which advertised Whakaari as the country’s most active volcano, was that it did not ensure adequate risk assessments of the activity of conducting tours on Whakaari had been undertaken.
This was particularly crucial as Whakaari had erupted in 2016, at night when no tourists or workers were on the island. Judge Thomas commented: “It should have been no surprise, particularly after the 27 April 2016 eruption, that Whakaari could erupt at any time and without warning, with the risk of death or serious injury to tourists or tour guides who may be there at that time. Without properly assessing this risk, WML had little chance of successfully managing it. Without properly assessing risk, other failures would inevitably follow.”
As a bare minimum WML should have engaged 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. Had WML complied with its duty and obtained the necessary expert advice on the health and safety risk of allowing people onto the island, it would have fully understood the risk, the court held. Following this, it could have either stopped the tours entirely, or implemented effective controls, if that was possible, including by ensuring that workers and tourists were supplied with appropriate personal protective equipment, and that there were adequate means of evacuation.
The failure to do so resulted in tours on Whakaari without adequate controls, exposing people to the risk of death or serious injury. WML therefore breached section 37 of the HSWA. Sentencing is expected to take place in February 2024.
This case and the tragic events that took place on Whakaari are important reminders of the obligations on PCBUs (which can include a business, employer, sole trader or self-employed person) under the HSWA, and the reasons why these duties exist.
WML tried to pass off responsibility to other parties who were on the ground and actually running the tours. This case is an important reminder that abdicating responsibility will not suffice and all parties need to turn their minds to risk assessment and consultation.
Relevantly, the court found that there was no evidence that WML had deliberately ignored its duties under the HSWA, but it was clear that WML did not appreciate its obligations. This ignorance was no defence, however, and the court commented that this “illustrates the need to have taken expert advice right from the outset.”
Joseph Harrop is a senior associate specialising in employment law and commercial litigation at Lane Neave in Auckland. Elisabeth Giles is a solicitor on the Employment Law Team at Lane Neave in Christchurch.
