Allowing access to island created workplace but businesses operating on it controlled it: High Court
In 2024, Whakaari Management Limited (WML) was convicted under the Health and Safety at Work Act 2015 (HSWA) of failing to take sufficient steps to manage risks arising from a workplace. It had been charged following the eruption at Whakaari White Island on 29 December 2019, which caused the death of 22 people and serious injuries to another 25 people.
That conviction has been overturned. In a comprehensive decision, the High Court has found that WML, as the entity responsible for granting access to Whakaari, did not owe a duty to visitors. Further, that even if such a duty had been owed, WML took sufficient steps to discharge it.
The decision is therefore a significant reassessment of the duty found by the District Court to be owed by those who provide access to land.
An important aspect of the factual matrix of this case is the relationship between WML and the other defendants.
Whakaari is owned by Whakaari Trustee Limited (WTL), which was not prosecuted. WTL leased Whakaari to WML. WML then granted licences to commercial tour operators to access Whakaari (including for walking tours). Tour operators were charged and pleaded guilty to charges under HSWA.
In the District Court, WML had been found guilty under s. 37(1) of HSWA of failing to take all reasonably practicable steps to ensure that its “workplace” was without risks to the health and safety of any person. The District Court considered that Whakaari was a “workplace” for which WML remained responsible.
WML was acquitted of a charge under s. 36(2) of HSWA that it failed to take sufficient steps to ensure that its "work" did not put persons at risk. That was because the risk from the eruption did not arise from any “work” done by WML.
WML was fined $1,045,000 and ordered to pay reparations amounting to $4,880,000.
In the High Court, Justice Moore held that WML did not have a duty in relation to a “workplace.”
In reaching this conclusion, Justice Moore considered in detail what it meant for a PCBU to “manage or control” a workplace for the purposes of s. 37(1) of the HSWA, including looking at the legislative history of the provision. The court was satisfied that a “mere ability” to control a workplace (in a passive sense) was unlikely to be sufficient for a duty to arise, and that the inquiry must be whether a PCBU has the power or capacity (actively) to control or manage the workplace (in a practical sense). This inquiry should involve considering the nature of the workplace over which the duty is alleged, for example, whether it is a building or bare land. However, the “inherent danger or riskiness” should not affect the analysis. For assessing whether a PCBU has management or control under s. 37(1), it does not matter whether the site is an active volcano or a predator-free island sanctuary.
WorkSafe accepted that it was necessary for WML to have practical management or control over the workplace. Nevertheless, it argued that because WML imposed obligations on the tour operators and could cancel their licences, WML had sufficient control over the tours for duties to arise.
The High Court disagreed:
Allowing access to the island created the workplace but did not give WML control of the workplace. All landowners can decide whether or not to allow people onto their land.
WML's ability to withdraw access, including for breaches of their licence, was not enough on its own and there was nothing that gave WML active control over the operations.
Imposing safety obligations on the tour operators was sensible and should not expose a landowner to greater risk than if it did not impose conditions.
The payments WML received for access to Whakaari were relevant to understanding what WML's business was, but did not go to control over the workplace.
The fact that WML engaged with various government bodies regarding access to Whakaari and was involved in “user group” meetings merely showed that WML was an “interested and engaged landowner” but this did not mean it had active management or control of the workplace.
The key allegation was that WML should have obtained its own risk assessment, and could not rely on other agencies, especially after a 2016 eruption at Whakaari. The District Court had considered this to be a serious breach, setting the fine at a level reflective of “very high culpability.” In contrast, the High Court found that there was nothing more that was required of WML.
The High Court concluded that it was not reasonably practicable to obtain a separate risk assessment. This had to be understood by reference to its activity as essentially providing access to the site for a fee:
“Where someone knowingly signs up to an activity involving inherent but foreseeable natural hazards, the risks should be seen as arising from the work activity rather than the workplace. The walking tour operators all knowingly signed up to the risks of taking people to Whakaari.”
By requiring the operators to be aware of the risks, including by obtaining their own independent advice, WML had done all that was reasonably practicable.
The High Court also held that WML was entitled to rely on other agencies with oversight of tour operations and volcanic risk. WorkSafe had argued that WML was the PCBU required to understand and assess “societal risk.” The Whakaari Response Plan made Emergency Management Bay of Plenty (EMBOP) responsible for risk assessment, including as to whether the risk of visiting Whakaari was too high, and this was relevant as to whether it was reasonably practicable for WML to obtain its own risk assessment. A risk review occurred after the 2016 eruption and the Whakaari Response Plan had been updated in 2019. The High Court found that WML was entitled to rely on those processes.
The tour operators had been certified and audited under the Adventure Activities regulations. The gaps in this audit process have been much discussed since, but were not known at the time and there was no reason why WML should not have relied on audits whose very purpose was to provide assurance that operators were managing safety systematically and “to a high standard.”
The High Court has issued a detailed and thorough ruling. The court emphasised that its assessment is confined to the specific facts, but its analysis of how the s. 37 duty applies will be welcomed by, and come as a relief to, many landowners.
In particular, the clear statement that an owner who provides access is not to be held responsible for the risks inherent in the activity, even if they have charged an access fee, will reassure landowners who were concerned that this was not the position following the conviction of WML in the District Court. Interestingly, the interpretation adopted by the court was advanced by the Aotearoa Climbing Access Trust. In our view, this reasoning must apply even where the activity is not being managed by another commercial PCBU.
As to whether the duty would have required WML to obtain its own risk assessments, the court approached reasonable practicability from the perspective of utility rather than feasibility. In particular, the court was satisfied that it was not reasonably practicable for WML to do this where other parties were “more specialised and capable of understanding the risks of the activities.”
However, the court's analysis turned on some unusual factors, particularly the specific role of official agencies such as EMBOP. The court's finding that someone needed oversight of “societal risk” suggests that, in other contexts, the landowner may be the PCBU required to understand that overall risk, even if other parties have assessed their own individual risk.
The decision emphasises that duties in this area need to be carefully considered in the full factual context.
Of course, legal duties are only ever part of the story. Whakaari was a tragedy. As Justice Moore concluded, the 47 people should not have been on the island when it erupted, and their presence was the result of multiple systemic failures.
Mark Campbell is a Special Counsel in the litigation and corporate advisory teams at Russell McVeagh in Wellington. Patrick Tumelty is a litigator specialising in commercial litigation, health and safety, insurance, and shipping at Russell McVeagh in Auckland. Filip Nikolic is a Solicitor at Russell McVeagh in Auckland.
