Whakaari Management Limited v Worksafe New Zealand
[2025] NZHC 288
•27 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-132
[2025] NZHC 288
BETWEEN WHAKAARI MANAGEMENT LIMITED
Appellant
AND
WORKSAFE NEW ZEALAND
Respondent
Hearing: 29-31 October 2024 Appearances:
R S Reed KC, J D Cairney and P H Brash for Appellant
K P McDonald KC, D B Dow and STA Forrest for Respondent J Dixon KC and C Cox for Aotearoa Climbing Access Trust as Intervener
Judgment:
27 February 2025
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 27 February 2025 at 10:00 am.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms R S Reed KC, Barrister, Auckland
Mr J D Cairney and Ms P H Brash, Barristers, Bankside Chambers, Auckland Ms K P McDonald KC, Barrister, Wellington
Mr D B Dow, Meredith Connell, Auckland
Ms STA Forrest, WorkSafe New Zealand, Wellington
Mr J Dixon KC and Mr C Cox, Barristers, Shortland Chambers, Auckland Ms R Brown (Intervener’s instructing solicitor), Bell Gully, Auckland
WHAKAARI MANAGEMENT LTD v WORKSAFE NEW ZEALAND [2025] NZHC 288 [27 February 2025]
TABLE OF CONTENTS
Introduction [1]
What happened? [11]
The nature of Whakaari ]13]
Ownership and management of Whakaari [18]
Tour operators [24]
WML’s licence agreements [31]
Monitoring by GNS [37]
Other Government agencies [43]
Whakaari Response Plan [49]
Adventure Activities Regulations [56]
Events prior to the charging period – 2008 to 2016 [62]
The eruption on 27 April 2016 [67]
Government response to 2016 eruption [69] Tour operator registration under the Adventure Activities Regulations [73] WML’s actions over the charging period [86]
Volcanic activity in the months preceding the 2019 eruption [92]
The eruption on 9 December 2019 [101]
Charges against WML [106]
Health and Safety at Work Act 2015 [111]
District Court decision [131]
WML’s grounds of appeal [141]
Approach on appeal [146]
Did WML have a duty under s 37? [149]
The Judge’s reasons [152]
What does it mean to be a PCBU who manages or controls a workplace? [158]
Did WML manage or control the walking tour workplace? [202]
(a)The grant of access [206]
(b)The terms of the licence agreements [215]
(c)WML’s actions after granting access [227]
(d)Money and societal risk [234]
If WML had a duty under s 37, did it breach it? [241]
WorkSafe’s case, WML’s defence and the Judge’s reasons [243]
WML’s challenge on appeal [255]
Was it reasonably practicable for WML to obtain a risk assessment for
its business? [259]
(a)WML’s business [263]
(b)Reliance on Government agencies [280]
Was it reasonably practicable for WML to carry out the further
particulars? [305]
Would compliance with its duty have prevented risks of death or
serious injury? [310]
Concluding comments [317]
Result [321]
Introduction
[1] Whakaari White Island is an active volcano that lies off the coast of the Bay of Plenty.1 At 2:11 pm on Monday 9 December 2019 it erupted. Ash, volcanic gas, steam, and rocks suddenly rose several hundred metres into the air. In less than a minute, that eruptive mixture then collapsed and spread across the crater floor.
[2] There were 47 people on the Island at the time. 42 were paying tourists; five were tour guides. In total, 22 people died as a result of the eruption. The remaining 25 were all seriously injured, some severely so. Most, if not all survivors, still bear the physical and emotional scars of that horrific day.
[3] Whakaari is – and was at the time of the eruption – owned by Whakaari Trustee Ltd (“WTL”). It leased Whakaari to the appellant, Whakaari Management Ltd (“WML”). WML, in turn, granted licences to commercial tour operators (“walking tour operators”) who conducted guided walking tours for tourists on the crater floor of the Island (“the walking tour workplace”). WTL and WML were incorporated by their directors, Andrew, James and Peter Buttle, in 2008. They were the third generation of the Buttle family to own the Island after their grandfather, George Raymond Buttle, purchased it in 1935.
[4] Following the 2019 eruption, the respondent, WorkSafe New Zealand (“WorkSafe”), commenced an extensive and wide-ranging investigation. This led to 13 defendants, including WML and the Buttle brothers, being prosecuted under the Health and Safety at Work Act 2015 (“HSWA”).
1 I refer to Whakaari White Island alternatively as “Whakaari” or “the Island” throughout this judgment.
[5] Six defendants, including the Buttle brothers, had their charges dismissed before or during the trial.2 Six – including all walking tour operators – pleaded guilty.3 Only WML remained. WML was charged with an offence under s 48 of HSWA for failing to comply with an alleged duty to ensure that the walking tour workplace, the means of entering or exiting it, or anything arising from it were without risks to the health and safety of any person under s 37(1). It was also alternatively charged for failing to comply with an alleged duty under s 36(2) to ensure that the health and safety of others was not put at risk because of the conduct of its own business or undertaking. The charging period was for between 4 April 2016 – the date HSWA came into force
– and 10 December 2019 – the day after Whakaari erupted.
[6] On 31 October 2023, following a ten-week judge-alone trial, Judge E M Thomas in the District Court at Auckland found WML guilty in respect of the charge of breaching its duty under s 37(1). The Judge found that WML managed or controlled the walking tour workplace, and that it breached its duty to ensure that workplace was without risks to the health and safety of any person. The Judge acquitted WML on the alternative charge of breaching its duty under s 36(2).4
[7] On 1 March 2024, the Judge sentenced WML together with the other defendants who had earlier pleaded guilty. WML was fined $1,045,000 and ordered to pay reparation of $4,880,000.5
[8] WML now appeals its conviction. It says that it did not owe a duty under s 37 of HSWA and that even if it did, it was not in breach of that duty. It further says that even if it was in breach, compliance with any such duty would not have prevented any
2 These were the National Emergency Management Agency; ID Tours New Zealand Ltd; Tauranga Tourism Services Ltd; and, as noted, Andrew Buttle, James Buttle and Peter Buttle. See WorkSafe New Zealand v National Emergency Management Agency [2022] NZDC 8020; WorkSafe New Zealand v ID Tours New Zealand Ltd [2023] NZDC 19521 and WorkSafe New Zealand v Buttle [2023] NZDC 18939. The Institute of Geological and Nuclear Sciences Ltd (“GNS”) also had a charge for a breach of s 36(2) of HSWA successfully dismissed but pleaded guilty to a charge under s 36(1)(a) in respect of its own workers. See WorkSafe New Zealand v Institute of Geological and Nuclear Sciences Ltd [2022] NZDC 21610 and WorkSafe New Zealand v Institute of Geological and Nuclear Sciences Ltd [2024] NZDC 4149, (2024) 20 NZELR 380.
3 These were Inflight Charters Ltd, White Island Tours Ltd, Volcanic Air Safaris Ltd, Aerius Ltd, Kahu NZ Ltd and, as noted, the Institute of Geological and Nuclear Sciences Ltd in respect of its charge for breach of s 36(1) of HSWA.
4 WorkSafe New Zealand v Whakaari Management Ltd [2023] NZDC 23224, (2023) 20 NZELR 138 [District Court decision].
5 WorkSafe New Zealand v Whakaari Management Ltd [2024] NZDC 4119, (2024) 20 NZELR 399.
individual from being exposed to a risk of death or serious injury. WorkSafe opposes the appeal.
[9] On 22 July 2024, the Aotearoa Climbing Access Trust (“ACAT”) sought leave to intervene in this proceeding. It did so on the grounds that this appeal involves questions about when landowners/controllers will be exposed to liability under HSWA by permitting others to access their land.
[10] Downs J granted ACAT’s application to intervene with written submissions.6 ACAT did not make oral submissions at the hearing before me.
What happened?
[11] In order to understand WorkSafe’s prosecution of WML – and WML’s appeal in turn – it is necessary to first discuss the nature of Whakaari and its eruptive history; its ownership and management through WML; the way in which tourism was conducted on the Island and the various Government agencies concerned with monitoring the risks associated with allowing the public to visit it.
[12] This is because that context informs the events both before and during the charging period that help to explain how it tragically came to be that 47 people were on the Island at the time it erupted.
The nature of Whakaari
[13] Whakaari lies 48 kilometres off the coast of Whakatāne. It is an active volcano with a long eruptive history. Indeed, it is commonly referred to as New Zealand’s most active volcano.
[14] Significantly, Whakaari is a mostly submerged volcano. The vast majority of its mass its beneath sea level. Only the volcano’s summit and crater area emerge above the water. The shape of the crater, which opens to the sea on the south-eastern side,
6 Whakaari Management Ltd v WorkSafe New Zealand HC Auckland CRI-2024-404-132, 31 July 2024 (Minute (No 2) of Downs J).
permits ready access on foot, via a wharf. Situated within the crater area sits the crater lake.
[15] Whakaari’s volcanic history shows that it is prone to what are known as “phreatic explosions”. These explosions occur when water is heated by magma or volcanic gas. The nature of these explosions is that they “impulsively” and “violently” eject ash, steam, volcanic gas and rocks into the atmosphere.7 Usually, but not always, some of this eruptive mixture then collapses back onto the ground and then, very rapidly, spreads out across the surface. This is what is known as a “pyroclastic density current” (“PDC”) or “base surge”. The temperature of these surges varies but can reach over a few hundred degrees Celsius.
[16] Because of this, PDCs are regarded as the most significant hazard on many active volcanos. They account for almost 40 per cent of volcanic fatalities worldwide. Their high speed and commonly high temperatures make them lethal, such that most who are caught in one will be killed. Indeed, for that reason, the Institute of Geological and Nuclear Sciences Ltd (“GNS”) attributed a 95 per cent fatality rate in the event of being caught in a PDC.
[17] The eruption which occurred on 9 December 2019 was a phreatic explosion. The PDC that formed afterwards covered the crater floor in less than a minute.
Ownership and management of Whakaari
[18] The Buttle family have had a long connection to Whakaari. As mentioned, the Buttle brothers’ grandfather, George Buttle, purchased Whakaari in 1935. He did so after sulphur mining was discontinued on the Island. In 1958, ownership passed to his son, John.
[19] In the 1990s, Peter and Jenny Tait – who operated a fishing charter business – began to land tourists on Whakaari. Their business developed into White Island Tours Ltd (“White Island Tours”). White Island Tours grew to become the main provider of
7 The words “impulsively” and “violently” have been used deliberately. They were coined by Sir Stephen Sparks, an Emeritus Professor of Geology at the University of Bristol and expert volcanologist, who gave evidence for WorkSafe at the trial.
tourists to the Island. John Buttle informally granted the Taits access to Whakaari for this purpose. Originally, he requested only a donation to charitable organisations in return. However, a licence fee model was later introduced. This is relevant because it shows that walking tours on Whakaari had been operating for roughly thirty years before the 2019 eruption.
[20] John Buttle died in 2006. On his death, ownership passed to his wife Beverley and to their three sons, Andrew, James and Peter.
[21] In 2008, the Buttle brothers incorporated WML and WTL. The brothers were (and indeed still are) directors of both companies. WTL was incorporated to own Whakaari and to hold it on trust for John Buttle’s descendants. WML was incorporated to “manage” the Island and to generate revenue through this “management”.8 This arrangement allowed the financial management of Whakaari to be separated from its legal ownership.
[22] WML generated revenue from Whakaari by granting licences to tour operators. These licences permitted tour operators to conduct paid walking tours for tourists on “the part of the Island within the lower slopes of the crater walls that is safe to walk on”. In return, the tour operators were required to pay an annual licence fee and a commission for each customer taken by them to the Island.
[23] Despite its name, WML operated from Auckland rather than the Bay of Plenty. Its registered office was – and still is – in Greenhithe. WML never had any staff or other permanent presence on either Whakaari or nearby Whakatāne. And, crucially it says, it never conducted any tours nor engaged in any activity on Whakaari itself.
Tour operators
[24] Five tour operators held licence agreements to conduct tour guides on Whakaari with WML during the charging period. These were White Island Tours;
8 I use quotation marks deliberately given one of the central issues in this case is whether WML, as a matter of law, managed or controlled the walking tour workplace on Whakaari for the purposes of s 37 of HSWA.
Kahu NZ Ltd (“Kahu”); Volcanic Air Safaris Ltd (“Volcanic Air”); Aerius Ltd (“Aerius”); and Inflite Charters Ltd (“Inflite”).
[25] White Island Tours had the exclusive right under its licence agreement to conduct tours by boat out of Whakatāne and to licence other marine-based operators to take tours to the crater area. Its customers comprised the majority of all the tourists who went to Whakaari. At the start of the charging period, White Island Tours was owned by Peter and Jenny Tait. In 2017, it was sold to Ngāti Awa Group Holdings Ltd.
[26]Kahu operated tours by helicopter out of Whakatāne and had an exclusive
licence to do so. It had been operating helicopter tours to the Island since 2009.
[27] Volcanic Air operated tours by helicopter out of Rotorua and also had an exclusive licence to do so. Like Kahu, it had been operating helicopter tours to the Island since 2009.
[28] Aerius operated tours by helicopter out of Tauranga and, like Kahu and Volcanic Air, also had an exclusive licence to do so. It had been operating helicopter tours to Whakaari since 2014.
[29] Inflite operated out of Auckland but did not operate tours itself. Rather, after flying passengers to Whakatāne, it subcontracted to other helicopter operators such as Kahu, to transport passengers to Whakaari. Inflite had been operating tours in this way since 2018.
[30] The effect of these licence agreements was that tourists were taken to Whakaari either by boat or helicopter. After landing on the Island, they were taken from either the jetty or helicopter landing areas via a circuit that took them to the edge of the crater lake before returning to the place where they had first landed.
WML’s licence agreements
[31] WML’s various licence agreements with the tour operators were all materially the same. In essence, and as already noted, the licence agreements provided tour
operators with access to undertake their own businesses – walking tours on the crater floor – in return for a licence fee, and a commission for each customer taken.
[32] Under the terms of the licence agreements, tour operators were required to form an “operator” or “user” group. The purpose of this group was to allow the tour operators to co-ordinate with each other and to “operate harmoniously so as not to interfere with one another’s activities”. This included co-ordinating collective risk management.
[33] The licence agreements also imposed (or at least purported to impose) extensive obligations on the tour operators as licensees. For example, the agreements required licensees to “acknowledge and accept full responsibility for the safety and wellbeing of their officers, employees, contractors and invitees” while on the Island. The licence agreements also required tour operators to:
(a)not allow anyone to visit the Island without a thorough understanding
– and written acknowledgment – of the risks and dangers inherent in landing on and remaining on an active volcano;
(b)obtain independent advice regarding volcanic and seismic activity levels;
(c)prepare and maintain suitable safety plans for the operation of tours on the Island which, at a minimum, needed to include “identification of the risks involved” and how “such risks” would be monitored;
(d)ensure that their safety plans had been audited by an “external expert”;
(e)monitor the risks and dangers of visiting the Island, so as to ensure they were reasonable for visitors;
(f)refrain from taking tourists to Whakaari if the risks and dangers of visiting the Island were such that it was unreasonable or imprudent to do so; and
(g)ensure that all visitors were properly equipped to manage any hazards, including by wearing “suitable clothing and footwear, gasmask and hard hat”.
[34] The licence agreements also included a mechanism for WML to receive records and information. They provided this to WML on or prior to the twentieth of each month. Licensees were also required to provide a “monthly return” detailing every trip made to the Island under the licence.
[35] Finally, the licence agreements gave WML the right to terminate in certain circumstances. The relevant rights of termination for the purposes of the present appeal gave WML the right to terminate “at any time and with immediate effect by written notice” where:
(a)the licensee committed a material breach “not capable of being remedied”; or
(b)the licensee committed a material breach capable of being remedied, but failed to do so within 14 days after notice of the breach and a request for remediation had been provided.
[36] By 2019, WML was earning close to $1 million per year through its licence agreements with the tour operators.
Monitoring by GNS
[37] Due to its nature as an active volcano, Whakaari was – and indeed still is – regularly monitored by GNS.9 GNS is New Zealand’s lead agency for monitoring volcanoes.10 It measures volcanic activity on all volcanoes in New Zealand using the New Zealand Volcanic Alert Level (“VAL”) System.
9 Although still formally registered as the Institute of Geological and Nuclear Sciences Ltd, GNS now goes by GNS Science, Te Pū Ao.
10 Of course, GNS is not limited to the monitoring of volcanoes. Its purpose is, among other things, to undertake research that “increases Aotearoa New Zealand’s resilience to natural hazards”.
[38] As can be seen in the table below, GNS’s VAL System consists of six alert levels ranging from VAL 0 (no volcanic unrest) to VAL 5 (major volcanic eruption). Due to its volcanic activity, Whakaari always sits at VAL 1 (minor volcanic unrest) or above.
[39] VALs are based on a description of activity at a volcano but are not explicitly linked to forecasts of when an eruption might occur. However, while not quantified, an increase in a volcano’s VAL (that is, from VAL 1 to VAL 2) necessarily implies that the probability of an eruption has increased. During the charging period, GNS set Whakaari’s VAL based on external observations and measurements, and through what
it was able to learn from monitoring equipment that it had set up on the Island. It held weekly meetings to review the data it gathered. The output of these meetings was to set and review the VAL and, if required, to issue Volcanic Activity Bulletins. GNS’s VAL assessments were published online through its website, GeoNet.
[40] GNS was able to set up and maintain its on-the-ground equipment on the Island due to a historic verbal licence agreement that it had with WML permitting it access to Whakaari, free of charge.
[41] GNS also released, as noted, Volcanic Activity Bulletins (“VABs”). These bulletins contained information about the current levels of volcanic activity on a volcano and were (and still are) used to explain changes in a volcano’s VAL. However, where GNS believed there to be an immediate risk to public safety at Whakaari, its approach in practice was to get in touch with tour operators directly while it drafted its VABs, so information could be provided as soon as possible.
[42] After WorkSafe’s charges were laid, WML revoked GNS’s licence. As such, GNS has been unable to return to Whakaari and can no longer maintain its equipment or monitor the volcano from the ground.
Other Government agencies
[43] Naturally, GNS was not the only Government agency with an interest in Whakaari and public access to it. Several others require mentioning.
[44] The first is the National Emergency Management Agency, otherwise known as “NEMA”. NEMA was established on 1 December 2019, replacing the Ministry of Civil Defence and Emergency Management. Together with GNS, its role was to maximise community safety from natural hazards through routine hazard monitoring and, in the case of volcanoes, the offering of advice during eruptive periods and periods of volcanic unrest. It was also responsible for research and emergency response when a major hazard occurred.
[45] NEMA received information from GNS under a Memorandum of Understanding that the organisations executed in 2015.11 Under this MoU, there were two regimes for the provision of advice – “business as usual” and “emergency response”. “Business as usual” applied when volcanoes were at VAL 1 and above with an unchanged status. “Emergency response” applied when volcanoes were experiencing eruptive episodes and periods of unrest. The nature of Whakaari’s volcanic activity was such that GNS was always required to provide information to NEMA. When changes in activity at the volcanic centre of Whakaari took place, the MoU required GNS to provide NEMA with, among other things, ongoing assessments of the volcanic hazards and associated risks (as provided through VABs); a range of monitoring data on Whakaari as provided through the GeoNet website and volcanic ashfall prediction maps at NEMA’s request.
[46] The MoU between these two organisations also set out how GNS personnel would assist NEMA during periods of volcanic unrest or when eruptive episodes were occurring. It stated:
·When a period of volcanic unrest is identified, the GeoNet Duty Officer, Science controller, or nominated GNS Science staff member will contact the MCDEM Duty Officer (or National Controller (or equivalent) if the NCMC is activated), and be available to provide advice within 60 minutes of the event starting.
·Throughout the duration of an eruption episode, the GeoNet Duty Officer, Science controller, or nominated GNS Science staff member will continue to be available to provide advice as appropriate.
·A staff member from GNS Science may also be required to attend and brief ODESC in support of the Director CDEM or National Controller.
[47] The second organisation deserving of mention is the Bay of Plenty Civil Defence Emergency Management Group and its “operational arm”, Emergency Management Bay of Plenty (“EMBOP”).12 Under s 17 of the Civil Defence Emergency Management Act 2002 (“CDEMA”), the Bay of Plenty Civil Defence Emergency Management Group was required to identify, assess, and manage hazards
11 The MoU was executed between GNS and the Ministry of Civil Defence and Emergency Management (as NEMA then was at the time).
12 As the parties did, I refer to the broader Bay of Plenty Civil Defence Emergency Management Group as EMBOP, even though EMBOP was technically just the former’s “operational arm”.
and risks in the Bay of Plenty, including Whakaari. Because of its role, EMBOP authored a Whakaari/White Island Response Plan (“Whakaari Response Plan”) in 2015. The Whakaari Response Plan will be discussed in detail later in this judgment.
[48] The third and fourth agencies are the Minister of Local Government and the Police. The Minister of Local Government was the territorial authority for Whakaari. The New Zealand Police’s role – at least prior to the 2019 eruption – was concerned with the evacuation of the Island in the event of an eruption. To that end, it had developed its own White Island Eruption Response Plan.
Whakaari Response Plan
[49] The Whakaari Response Plan was, as noted, prepared by EMBOP. The Plan went through several iterations but was operational from 2015, when it was first developed. In that sense, it was described as a “living document”. The latest version, prior to the 2019 eruption, was issued in September 2019.
[50] EMBOP authored the Whakaari Response Plan to manage the hazards and risks associated with Whakaari, consistent with its statutory obligations. To that end, the Plan included:
(a)a list of key agencies and their responsibilities with respect to Whakaari;
(b)a task list setting out what to do at a particular VAL when a VAB was issued; and
(c)a list of options for restricting access to the Island in the event of “unacceptable risk to the public”.
[51] The Whakaari Response Plan recorded that EMBOP was “responsible for managing the hazards and risks associated with Whakaari/White Island”, including – if necessary – implementing measures to minimise risks. It recorded that WorkSafe
was “responsible for overseeing the Health and Safety in Employment Act”,13 and for “ensuring tour operators compliance with the [A]ct”. It provided that any review of the tour operators’ risk management plans should be led by WorkSafe and that WorkSafe was to be informed when additional caution to the public was being advised.
[52] Under the heading of “public risk”, the Response Plan detailed information about the Island’s ownership, and those tour operators who landed on it. The Plan said:
Tour operators risk management
Tour operators have agreed to provide their risk management plans to [EMBOP] on request if required.
All operators are aware of the risks to themselves and customers when visiting Whakaari/White Island and manage the risk in essentially the same way as outlined below:
·Regular communication with other tour operators to share knowledge of observations while on the island.
·Regular direct communication with GNS.
·Individual assessment on the island before landing (pilot fly around or in the case of [White Island Tours] a walk around by one of the guides prior to landing customers).
·If necessary they will adjust the walking route around the island and keep clear of the areas of increased activity.
·Visitors are provided with gas masks and hard hats.
·Daily assessments of the activity and risk of visiting.
All operators receive direct communication from GNS and emails from the EMBOP Duty Manager and have indicated that they will take advice from GNS on the activity status of the island. In addition they use their personal experience (most are on the island daily during the peak season) to make a decision whether or not to visit.
Warning to consider risk
All operators are aware of the risks visiting, landing and walking on an active volcano and communicate this openly to their customers. To reinforce this practice all communication from the [EMBOP] to the tour operators should contain this message:
13 This, of course, should have been HSWA.
Civil Defence urges you to take this latest information into careful consideration when making the decision to visit Whakaari/White Island.
[53] The Whakaari Response Plan also acknowledged, however, that any risk to the public might, on occasion, be too great to permit landing. To that end, and under the heading “Unacceptable risk to the public”, the plan provided:
There may be a point in time when the BOP CDEM Group, considers that the risk to the public is too great for people to be walking on the Island or be in its immediate vicinity. This decision will be made by the BOP CDEM Group Controller in consultation with GNS, MCDEM, Police and the tour operators, cognisant of the significant financial impact to tour operator[s], but with a primary focus on managing risk to life and safety.
Following this decision the BOP CDEM Group Controller shall notify all the tour operators in writing (email) that the BOP CDEM Group considers the risk to the public safety to be significantly great that it advises tours landing on the island to cease until such time as the risk to the public has reduced. This message will also be reflected on the group website and any media releases.
[54] Accordingly, the Plan set out a number of options available to EMBOP in order to manage public access when it considered the risk of visiting the Island to be too great. These options were:
Option 1
The first and preferred option is to come to a mutual agreement with the tour operators. This would be the result of considered discussion and dialogue between the tour operators, CDEM Group, and GNS Science. The end result would be that visitors are restricted from landing on the Island while the situation is constantly monitored and assessed.
Should the tour operators and CDEM Group be unable to come to an agreement the group may need to take some other more formal action. Options for more formal action include:
Option 2
Engaging with the island owners to gain agreement to restrict access while the situation is constantly monitored and assessed.
Option 3
Section 18(2) of [CDEMA] allows the [EMBOP] to erect signs in order to manage the risk to the public. Signs warning the public of the danger may be erected on the island or the mainland if the group controller deemed this was necessary.
Option 4
Section 68 of [CDEMA] allows for a local declaration to be made by the joint committee chair on the recommendation of the group controller that they consider an emergency may occur. A declaration would be considered a final option after all other processes had been tested. It is important to note that a declaration will only be in place for seven days before it either lapses or requires to be extended.
WorkSafe has a programme of proactive and reactive action. If they became aware of increased risk then they would appraise what next steps they should take. In recognition of the Whakaari/White Island situation and increased inquiries that Worksafe has received about the island, they have engaged with operators to see how they are managing the risks and we will continue to monitor.
The BOPRC Harbourmaster can issue a maritime advisory requiring people to keep their distance from the Island should there be a significant risk to maritime safety. A maritime exclusion zone can only be established if there is an actual maritime hazard present. This would require information from GNS detailing the potential expected range of debris fall. It is important to note that an exclusion zone is only likely to be able to be established after or during an eruption.
[55] The Whakaari Response Plan was circulated to the relevant agencies, including WorkSafe, when it was updated in September 2019. WorkSafe responded with just one amendment: regarding its contact details.
Adventure Activities Regulations
[56] Finally, it is necessary to explain that since 2011, specific regulations have applied to the provision of “adventure activities” in New Zealand. “Adventure activities” are activities which, in essence, are designed to deliberately expose their participants to serious risks to their health and safety for recreational or educational purposes.14 Prime examples include bungy jumping; kayaking; and outdoor rock climbing.
[57] Prior to the enactment of HSWA, the Health and Safety in Employment (Adventure Activities) Regulations 2011 governed the provision of these activities. Once HSWA came into effect, the Health and Safety at Work (Adventure Activities) Regulations 2016 (“Adventure Activities Regulations”) applied.
14 Health and Safety at Work (Adventure Activities) Regulations 2016, reg 4.
[58] The effect of these regulations was to require those who provided adventure activities to be registered before they could do so.15 In order to be registered, adventure activity operators had to obtain and pass a safety audit in respect of how they provided their adventure activities from a WorkSafe-recognised safety auditor. The Adventure Activities Regulations made it an offence to operate without registration.
[59] At the time of the 2019 eruption, it was WorkSafe’s responsibility to recognise a person or organisation as a safety auditor if satisfied, among other criteria, that they had the appropriate experience and qualifications to carry out the audits.16 It was also WorkSafe’s responsibility to ensure compliance with the Adventure Activities Regulations, including the prosecution of any adventure activity operator who continued to provide adventure activities without registration.
[60] Significantly, these regulations were applied inconsistently across the various walking tour operators. White Island Tours was audited and registered in 2014 and 2017 for the adventure activity of “walking on a live volcano” but the helicopter walking tour operators were not. This meant that at the time of the 2019 eruption, only White Island Tours was registered to operate. How White Island Tours came to be audited and registered, and why the helicopter tour operators were not, form part of the key events leading up to why people were on the Island at the time it erupted.
[61] With that context in mind, it is now appropriate to turn to the key events in the lead up to the eruption on 9 December 2019.
Events prior to the charging period – 2008 to 2016
[62] After over a decade of relative stability from 2001 to 2012, Whakaari began showing signs of increased volcanic activity in July 2012. In December 2012, GNS
15 Following the 2019 eruption, the Health and Safety at Work (Adventure Activities) Regulations 2016 were amended. The regulations now provide WorkSafe with greater powers to suspend, cancel and refuse registration, but the essential premise – that adventure activity operators must pass a safety audit and be registered before they can provide activities – remains the same.
16 This was provided by reg 9 of the Adventure Activities Regulations as they stood at the time of the charging period. The current position is still effectively the same under reg 9 of the current Adventure Activities Regulations.
wrote to Andrew Buttle in respect of its own role at the time. It sent similar letters to EMBOP and to each tour operator.
[63] Four events are of note here, despite being before the charging period. First, on 6 February 2012, WML sent an email to its licensee tour operators noting the increased risk on Whakaari. WML also informed the tour operators that GNS could provide quantitative risk assessments for guided tours on the Island. No walking tour operator ever took up the suggestion. WorkSafe also emphasises, however, that WML did not engage GNS for this purpose either.
[64] Secondly, in July and September 2013, WML renewed licence agreements with Volcanic Air and Kahu, respectively, as walking tour operators. In both, access was confined to the “crater area” on Whakaari.
[65] Thirdly, in July 2014, WorkSafe advised Volcanic Air that it was not required to be registered under the then Adventure Activities Regulations. WorkSafe considered – in light of information Volcanic Air had provided – that Volcanic Air was “unlikely to be subject to” the then regulations. As such, it advised Volcanic Air that its business had therefore been removed from the register of businesses potentially subject to the regulations.
[66] Finally, in November 2014 (and notwithstanding WorkSafe’s advice to Volcanic Air), White Island Tours was audited for the purposes of registration as an adventure activity operator under the then 2011 regulations by Bureau Veritas, a WorkSafe-approved auditor. It was registered for the activity of “walking on a live volcano”.
The eruption on 27 April 2016
[67] On 4 April 2016, both HSWA and the Adventure Activities Regulations came into force. Twenty-three days later, on 27 April 2016, Whakaari erupted at approximately 9:50pm. The eruption occurred when Whakaari was at VAL 1. As it occurred at night, no one was on the Island at the time.
[68] As with the 2019 eruption, the 2016 eruption was a phreatic explosion. It generated a PDC that covered 95 per cent of the tourist trail along the floor of the main crater. Thus, had the eruption occurred during the day when tourists were visiting, it is likely that many would have suffered a similar fate to those who were killed and seriously injured three years later.
Government response to 2016 eruption
[69] Two days after the eruption, on 29 April 2016, a meeting was held between the Ministry of Civil Defence, Bay of Plenty Civil Defence Emergency Management, the Bay of Plenty Regional Council Harbourmaster, officials from WorkSafe and the Department of Internal Affairs. The meeting was called following concerns by the then Minister of Civil Defence – the Hon Nikki Kaye – as to visitor safety at Whakaari, and the statutory powers available to government agencies.
[70] That same day, the Director of Civil Defence Emergency Management reported back in writing to the Minister. The Director advised that all agencies were confident that when “significant volcanic activity occurs there are robust arrangements for escalating the response”. The Director’s reporting memorandum concluded by saying:
We consider that the current statutory framework provides adequate protections, in line with the principle of placing responsibility for safety at the appropriate level, and notwithstanding that there is always a residual safety risk in areas where natural hazards occur without warning.
[71] A brief overview of the meeting also appears to have been covered in an internal email between WorkSafe officials, sent that same day. The author of the email explained that the purpose of the meeting “was the need to provide reassurance to Ministers that across all agencies there is an ability to provide for the safety of [the] public involved in these activities”. The author said:
My key points regarding HSWA were:
• The two tour operators do have a duty under s36 with regard to the health and safety of the tourists.
• The Act places responsibility on them to manage the risk in accordance with the prevailing conditions.
• It is challenging for the regulator to make a determination of risk levels of a volcano at any given time.
• We would not routinely inspect such operations – but we could possibly become involved in dealing with a complaint.
• Tools that we have under HSWA could not practicably be used to stop activity should a third party determine that the volcano is less safe at a particular time. Our focus would therefore need to be on whether the risk management approach is robust.
• The fact that GNS has stopped workers going to the Island does not necessarily mean it is unsafe for the tourists as they undertake different activities and will likely have different evacuation arrangements.
During the discussion I was asked if the Adventure Activity regs applied. I have since checked and discovered that one of the two operators is registered. [WorkSafe] is doing some internal correspondence checks to determine why the other operator is not.
There is a possibility that we could be asked to look at the risk management approaches of these operators. An adventures activities audit should satisfy any such request.
[72] Notably, the WorkSafe official who authored this email made no reference to any responsibilities or duties borne by the owners of Whakaari.
Tour operator registration under the Adventure Activities Regulations
[73] White Island Tours was, as noted, audited and registered to provide walking tours in both 2014 and 2017. The first audit was carried out by Bureau Veritas, in October 2014. Following certification on 21 November 2014, WorkSafe registered White Island Tours on 27 November 2014 for a three-year period. The second audit was carried out by AdventureMark in November 2017. White Island Tours was then registered, again, for the activity of “walking on a live volcano”. As a registered adventure activity operator, it was listed on WorkSafe’s website. Both Bureau Veritas and AdventureMark were – as required – WorkSafe approved safety-auditors.
[74] Despite White Island Tours’ registration, the helicopter tour operators were not audited or registered. This discrepancy stemmed, as noted, from WorkSafe’s advice to Volcanic Air that it was not required to be registered in July 2014. This, of course, was despite the fact that White Island Tours was required to be, and in fact was, audited in November that same year.
[75] WorkSafe eventually expressed a change of opinion as to the need for registration in November 2017. In a letter dated 7 November 2017, it advised the unregistered helicopter operators of its “provisional view” that the operators needed to be registered under the Adventure Activity Regulations. However, it was slow to require compliance. Notably, it left an email from one of the unregistered operators that queried this view unanswered for over a year. Rather, WorkSafe communicated with WML in the apparent hope that it could convince WML that the unregistered operators needed to be registered, and so should not be permitted access to Whakaari until they did so.
[76] On 5 November 2018, a Senior Adviser at WorkSafe wrote to Andrew Buttle setting out his view as to why the Adventure Activity Regulations applied to walking tours on the crater of Whakaari. The email was long and detailed, but several extracts are important for the purposes of this appeal. The first was the Senior Adviser’s discussion of the “context” of the Adventure Activities Regulations:
The goal of these Regulations is to provide customers (and government) with internationally credible assurance that operators are managing safety in a systematic way, to a high standard. This helps to support safety for customers of course, and is also expected to protect the industry from reputational damage: if the inherent risks of adventure should lead to death or permanent injury but an un-controllable factor caused the incident, registration (and the auditable system trail) gives demonstrable confidence that the operator was not at fault. Any improvements in safety are a beneficial side-effect, but not the main purpose of the regulations, which were developed on the basis that most operators were already doing a reasonably good job of avoiding serious harms. Similarly, any closure of businesses as a result of the regulations is expected to impact only on those that were already marginal, and any such closures may lead to improved viability for registered businesses that can provide the desired level of assurance.
There is a clear understanding that some ‘notifiable events’ will continue to occur in adventure activities at a low rate – including a (reduced) possibility of deaths. There is also a clear expectation that post-incident investigations should be able to prove that an operator has in fact been thorough and diligent in managing the risks, and preparing for emergencies, so that the main cause of harm would reasonably be assigned to aspects of the risk that are in fact outside the operator’s control. In your context, that may be illustrated as the difference between acid gas and ash emissions (genuinely uncontrollable), versus a subsequent injury due to panic-ed customers “blundering about in a steam cloud with eyes shut against acid drops”* (which can be managed through staff training, provision of equipment, and customer management).
*the quote is from Naim, 1996.
These regulations aim to provide confidence that we won’t have blinded, panic-ed customers falling into a vent some day – even though there still remains an un-controllable risk of death from an event like the April 2016 overnight eruption if it should occur during a tour day.
[77] The email also explained why, in WorkSafe’s view, walking tours on Whakaari qualified as activities that “deliberately expose” its participants to a serious risk to their health or safety. It said:
The activity design is to walk into an active volcanic crater. At face value, there is a risk of death involved in visiting this location, shown by a history of fatal events arising from the location itself, and scientific assessment. Note, the ‘seriousness’ of the risk is further assessed in the following two points. As PCBUs, the operators have a legal duty to manage the risks arising from their work. Specifically, they must provide a work environment that is without risks to health and safety [s.36(3)(a)] and does not put the safety of other persons (customers) at risk [s.36(2)]. A key principle relating to that duty suggests that recreational/ educational exposure to the risk should be eliminated (tours stopped) if safety cannot be ensured by the hierarchy of controls because there is no compelling requirement for the exposure to the risk in its current form and ceasing tours is reasonably practicable. In other words, arguably the crater tours is not permissible under the general HSW Act 2015 and HSW (GWRM) Regulations 2016, so it could only be allowed to continue under an AAO registration which gives permission to accept and manage avoidable serious risks for recreation/education purposes.
[78] The email also explained why WorkSafe viewed the tours as occurring on “dangerous terrain” as follows:
The view that the tours are in ‘dangerous terrain’ is based on the following logic, which draws on the publication “Volcanic hazards at White Island” by
I.A. Naim, 1996; as well as advice from an MBIE solicitor in 2013.
·A volcano is able to cause harm but it may not be likely to do so, if it is unlikely to erupt, or if an activity is in a zone that is substantially protected from the likely risks (for example: some parts of Ruapehu are known lahaar paths but other parts, such as higher ridgelines, are low-risk for lahaars). ‘Dangerous terrain’ might be just the parts scientifically assessed as most likely to expose people to immediate danger.
·White Island is among the most volcanically active sites in NZ, and the tours go directly into the active crater zone.
·Unlike members of the public at volcanically active sites such as Kuirau Park (Rotorua), visitors to Whakaari are reliant on tour operators to manage the risk to them, because inherently unstable ground and active vents are not fenced off.
oThe installation in 2016 of a containerised shelter and emergency equipment store is further supporting evidence
that this location is viewed as dangerous by others with relevant background and expertise.
[79] WorkSafe then later met with WML and the unregistered operators in March 2019 to confirm its view that registration was required. However, it took no steps to require registration from this point. This was because it then reconsidered its decision that registration was required at the request of one of the unregistered tour operators. It was only on 18 November 2019 – a mere three weeks before the eruption – that it confirmed its conclusion that registration was required, and that it expected “clear movement towards compliance in a reasonable time-frame”.
[80] Following the eruption, David Laurenson KC was tasked with reviewing the way in which WorkSafe performed its regulatory functions under the Health and Safety at Work (Adventure Activities) Regulations 2016 with respect to Whakaari. His review was damning and, importantly, his findings were unchallenged at the hearing before me.17
[81] Mr Laurenson concluded that the safety audits of White Island Tours in 2014 and 2017 were seriously deficient. This was because neither Bureau Veritas nor AdventureMark had a technical expert with the appropriate experience or qualifications to carry out an audit of an adventure activity that involved walking tours on a live volcano (the very thing that made registration required under the regulations).18
[82] Mr Laurenson’s investigation revealed that the technical expert used by Bureau Veritas was a qualified mountain guide, but one who had no expertise in respect of volcanic hazards. And, even more critically, it revealed that Bureau Veritas had not been assessed as having the appropriate expertise or qualifications to carry out such an audit because the very list of activities for which it was meant to be capable of auditing did not include activities expressed to be on or near a live volcano.19 In other words, Bureau Veritas’ audit was deficient both because its own personnel lacked the
17 David Laurenson KC Review of WorkSafe New Zealand’s Performance of its Regulatory Functions in Relation to Activities on Whakaari White Island (8 September 2021).
18 At [183].
19 At [161].
required expertise and because WorkSafe never ensured that Bureau Veritas was required to have such expertise in the first place.
[83] Mr Laurenson’s investigation also revealed that by 2017, WorkSafe had still not ensured that its approved safety auditors were capable of auditing activities taking place on a live volcano, notwithstanding that this had been considered in September 2015 and 2017.20 He found that because White Island Tours had engaged GNS as its technical advisor, WorkSafe accepted that it was not necessary for AdventureMark to appoint a technical expert with experience in volcanic risks and hazards to audit White Island Tours’ own safety management system in respect of how it identified and managed those risks.21 He concluded that because of this, WorkSafe ought to have known that the AdventureMark audit would not cover the risks and hazards that made White Island Tours’ operation registrable as an adventure activity.22
[84] Ultimately, Mr Laurenson concluded that WorkSafe did not take the appropriate steps required to carry out its regulatory functions in order to ensure that White Island Tours was audited by an auditor with the appropriate experience and qualifications.23
[85] Mr Laurenson’s investigation also concluded that WorkSafe failed to take the appropriate steps required to monitor and enforce compliance with the Adventure Activity Regulations in respect of helicopter operators providing tours on Whakaari. He concluded that WorkSafe had been aware since at least 2014 that there were potentially unregistered operators carrying out activities on Whakaari, but that by November 2019 it had not even reached the stage of referring the matter to the WorkSafe inspectorate to consider enforcement action against the unregistered operators. He considered the delay in requiring registration of those operators until November 2019 to be unjustified in the circumstances.24
20 At [198].
21 At [202].
22 At [204].
23 At [184].
24 At [228].
WML’s actions over the charging period
[86] Over the course of the charging period, WML granted or renewed licence agreements with Aerius in November 2016; Ngāti Awa Investments Ltd (that is, White Island Tours) in April 2017 and Inflite in July 2018.
[87] WML also maintained a direct and continuing relationship with tour operators and interested government agencies, both through meetings and email and phone correspondence. For example, it participated in a meeting chaired by EMBOP on 14 September 2018 attended by the tour operators, the New Zealand Police, GNS, and others. At this meeting, GNS gave an update on the then “current situation” at Whakaari and the placement of a container which it had arranged, with the New Zealand Defence Force, to be located on the Island. The New Zealand Police also advised at this meeting that it had completed a “mass rescue plan” for Whakaari, and that it would be running a “table top exercise” for the plan to be tested together with other emergency services.
[88] Later that same day, WML participated in a meeting which it had organised with tour operators for the purpose of developing a “long-term plan” for tourism on Whakaari. This meeting was a pre-meeting for a “Future Planning Forum” that would be held in 2019. The topics of discussion included “enhancing” the tourist experience through offering “tour products outside the crater area”, such as overnight stays on the Island. WML also remained in regular contact with tour operators through the monthly reports of passenger numbers that tour operators were required to provide under their licence agreements. But, aside from this and its attendance at the occasional user group meeting, the evidence of White Island Tours’ General Manager, Patrick O’Sullivan, was that WML’s communications with tour operators was limited. Mr O’Sullivan said that beyond the monthly reporting of passenger numbers, any remaining contact comprised the “odd cup of coffee” when the Buttle brothers were in town.
[89] WML was, however, actively involved in discussions about developing tourism to Whakaari, as the meeting on 14 September 2018 shows. On 30 April 2019, it co-hosted a meeting with Whakatāne Council for this purpose which was attended
by the tour operators, GNS, Civil Defence, the Department of Conservation, and the Department of Internal Affairs. The meeting discussed the feasibility of developing “new products” on the Island, such as reinstating the miners’ track from Bungalow Bay to the Crater Rim; offering overnight camping or glamping, and opening the Island up for tourism opportunities more generally beyond the current crater route.
[90] WML was also in fairly regular communication with various interested government agencies. For example, in July 2019 the Buttle brothers requested that they be added to GNS’s distribution list for its VABs. In September 2019, the Buttle brothers were sent a copy of the Whakaari Response Plan developed by EMBOP. And, of course, from August 2018, WML was engaged in discussions with WorkSafe about whether the walking tour operators were required to be registered under the Adventure Activities Regulations.
[91] WorkSafe also highlights that WML omitted to do certain things throughout the charging period. It says that its primary omission was that it did not conduct or obtain a risk assessment, either prior to entering into its licence agreements or at any point thereafter. And while WML knew that GNS was capable of providing it with a bespoke quantitative risk assessment for the activity of “permitting tourists to travel to Whakaari”, it failed to do so. Rather – as already noted – it advised tour operators that GNS could provide this service, and that they might want to obtain it themselves.
Volcanic activity in the months preceding the 2019 eruption
[92] On 25 May 2019, GNS advised White Island Tours of an “earthquake swarm” near Whakaari. White Island Tours subsequently stopped tours for that day. Just over a month later, on 27 June 2019, a VAB was issued and Whakaari’s VAL was increased to VAL 2. Mr O’Sullivan, from White Island Tours, was informed and emailed the tour operators’ user group to inform them. Whakaari’s VAL was later lowered to VAL 1 on 1 July 2019.
[93] On 26 September 2019 and 30 October 2019 further VABs were issued. Whakaari’s VAL remained at VAL 1. The VAB of 30 October 2019 stated that volcanic unrest continued and that “some monitored parameters showed an increase in activity, with a level of uncertainty about what this means”. It also noted that while “VAL 1 is
mostly associated with environmental hazards”, “eruptions can still occur with little to no warning”.
[94] On 18 November 2019, Whakaari’s VAL was increased to VAL 2. Another VAB was issued. The VAB relevantly explained:
Overall, the monitored parameters are just above the expected range for minor volcanic unrest and associated hazards. The patterns of signals are similar to those through the 2011—2016 period and suggest that Whakaari/White Island may be entering a period where eruptive activity is more likely than normal, recent observations can also be explained by the increased gas flux which leads to geysering and lake level changes.
The Volcanic Alert Level is raised to Level 2. The Aviation Colour Code is increased to Yellow.
GNS Science and the National Geohazards Monitoring Centre continues to closely monitor Whakaari/White Island for further signs of activity. Volcanic Alert Level 2 is mostly associated with unrest hazards on the volcano and could include eruptions of steam, gas, mud and rocks. These eruptions can occur with little or no warning.
[95] The same day, a GNS volcanologist told Radio New Zealand that “tour groups can still visit the Island”. A GNS volcanologist also told a NEMA Duty Officer that he believed the increase in activity to be “very small” and that, as such, there was “no higher risk for people visiting the Island”. Consistent with that advice, the Duty Officer advised that “no action was needed” at that stage.
[96] On 25 November 2019, a further VAB was issued. Whakaari’s VAL remained at VAL 2. The VAB said:
There has been no change in activity at the volcano after the deep magnitude
5.9 earthquake, that occurred beneath eastern Bay of Plenty on Sunday 24 November.
Gas emissions continue to be high to moderate in the last week, since Monday 18 November, and volcanic tremor remains at moderate levels. There have been few earthquakes near the island.
The crater lake level has not changed for the last week, and gas-driven fountaining activity continues to be observed around the active vents on the west side of the crater floor. This fountaining is regularly throwing mud a few metres into the air at the vent but at current levels does not pose a hazard to visitors.
Overall, the monitored parameters continue to be in the expected range for moderate volcanic unrest and associated hazards. The monitoring observations are similar to those seen in the more active 2011—2016 period and suggest that Whakaari/White Island may be entering a period where eruptive activity is more likely than normal.
[97] The VAB of 25 November 2019 then repeated its standard advice that VAL 2 was mostly associated with “unrest hazards on the volcano and could include eruptions of steam, gas, mud and rocks”. It stated that these eruptions could occur with little to no warning.
[98] The last VAB prior to the eruption was published on 3 December 2019. It contained similar messages to the previous VAB issued on 25 November 2019. It said:
Explosive gas and steam-driven mud jetting continues from the active vent area at the back of the crater lake on Whakaari/White Island. The level of activity at the vent is variable and when in a stronger phase, some material is being deposited about the vent area. This style of activity has been present since late September, although it is occurring more frequently now. No volcanic ash is being produced.
Volcanic gas emission and seismic activity continue to remain elevated. Occasional gas smell may have been noted on the North Island mainland, pending on the dominant wind direction. Volcanic tremor also remains at moderate levels in the last week, with some periodic variations, matched with episodes of increased gas-steam jetting and fountaining.
The water level of the crater lake has not changed for the last week, and gas/steam-driven mud fountaining activity continues to be observed from the active vent area on the west side of the 1978/90 Crater Complex, near the 2012 lava dome, at the back of the crater lake.
This fountaining is regularly throwing mud and debris 20-30 metres into the air above the vent. The level of activity is variable and remains within the range expected for moderate volcanic unrest. While the activity is contained to the far side of the lake, the current level of activity does not pose a direct hazard to visitors.
Overall, the monitored parameters continue to be in the expected range for moderate volcanic unrest and associated hazards exist. The monitoring observations bear some similarities with those seen during the 2011-2016 period when Whakaari/White Island was more active and stronger volcanic activity occurred. Observations and data to date suggest that the volcano may be entering a period where eruptive activity is more likely than normal.
[99] On the evening of 8 December 2019 – the day before the eruption – a large spike in seismic energy and geysering activity was observed. The expert evidence of
Sir Stephen Sparks – a world-leading volcanologist who gave evidence at the trial – was that the spike was an indicator that the probability of an eruption had increased.
[100] On 9 December 2019, the day of the eruption, GNS drafted a VAB that was not published before the eruption. The VAB recorded that seismic activity and volcanic gas emissions continued to remain elevated. It stated that this level of activity remained “within the range expected for moderate to heightened volcanic unrest”, and that observations and data suggested “that the volcano is entering a period where eruptive activity is more likely than normal”. The VAB recorded that Whakaari’s VAL remained at VAL 2.
The eruption on 9 December 2019
[101] At the time of the eruption, seven tours had already been conducted on Whakaari that day. Two tours were conducted by White Island Tours; three by Volcanic Air; one by Aerius and another by Kahu, as a subcontractor to Inflite.
[102] When Whakaari erupted, two tours were being conducted. One, conducted by White Island Tours, was for customers who had travelled to Whakatāne from the cruise ship Ovation of the Seas, operated by Royal Caribbean Cruises Ltd, which had docked in the Port of Tauranga. The other was conducted by Volcanic Air.
[103] The White Island Tours’ group was split into two groups of 19 people. Each group was led by two tour guides. The first group commenced the walking tour first and headed toward the crater floor. It left the crater lake at approximately 1:50 pm to return to the wharf. That group was half-way to the wharf at the time of the eruption. The second group arrived at the crater lake at approximately 1:50 pm. It left the crater lake at approximately 2:08 pm and had not walked far from the crater lake by the time Whakaari erupted.
[104] The Volcanic Air tour group comprised four tourists and a pilot guide. After leaving Rotorua at approximately 12:26 pm, the group landed on Whakaari at approximately 1:30 pm. When Whakaari erupted, the Volcanic Air group was close to completing the walking tour and were approximately 200m from the wharf.
[105] Of the 42 people that comprised the White Island Tour group, 21 died as a result of injuries sustained in the eruption. Three died in the first group while 18 died in the second. Of the five that comprised the Volcanic Air group, one died several months later as a result of injuries suffered in the eruption. As noted, all remaining survivors suffered serious injuries.
Charges against WML
[106] Following its wide-ranging investigation, WorkSafe laid two alternative charges against WML on 30 November 2020. The first was for committing an offence under s 48 of HSWA for breaching a duty owed under s 36(2). The second was for committing an offence under s 48 of HSWA for breaching a duty owed under s 37(1).
[107] The first charge – for breach of a duty under s 36 – alleged that WML had a duty to ensure, so far as reasonably practicable, that the health and safety of other persons who it had permitted to be on Whakaari were not put at risk from “work carried out as part of the conduct of the business or undertaking, namely the management of Whakaari”. It alleged that WML failed to comply with this duty, and that this failure exposed individuals to a risk of death or serious injury arising from volcanic activity. It further alleged that:
It was reasonably practicable for Whakaari Management Limited to:
1ensure adequate risk assessments of the activity of conducting tours on Whakaari had been undertaken;
2consult, co-operate and co-ordinate with Institute of Geological and Nuclear Sciences Limited, National Emergency Management Agency (formerly the Ministry of Civil Defence and Emergency Management) and the tour operators as to the hazards and risks posed to workers and tourists from volcanic activity;
3monitor and review known hazards when there is a change in Volcanic Alert Level and/or the issuing of a Volcanic Alert Bulletin;
4 …
5ensure that workers and tourists are supplied with appropriate personal protective equipment;
6 …
7 ensure there is an adequate means of evacuation from Whakaari.
[108] The second charge – for breach of s 37 – alleged that WML had a duty to ensure, so far as reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace were without risks to the health and safety of any person. It alleged that WML failed to comply with this duty and that this failure exposed individuals to a risk of death or serious injury arising from volcanic activity. It further alleged that:
It was reasonably practicable for Whakaari Management Limited to:
1ensure adequate risk assessments of the activity of conducting tours on Whakaari had been undertaken;
2consult with Institute of Geological and Nuclear Sciences Limited, and consult, co-operate and co-ordinate with the PCBUs that conduct tours on Whakaari as to the hazards and risks posed to workers and tourists from volcanic activity;
3monitor and review known hazards when there is a change in Volcanic Alert Level and/or the issuing of a Volcanic Alert Bulletin;
4 …
5ensure that workers and tourists were supplied with appropriate personal protective equipment;
6 …
7 ensure there is an adequate means of evacuation from Whakaari.
[109] Particulars 4 and 7 under both charges have been left blank because they were withdrawn at trial.
[110] The charges were laid as alternatives. This meant that in practice, WorkSafe was not seeking convictions on both. As noted, the Judge found WML guilty of the second charge and acquitted it of the first charge. However, the Judge did not acquit WML simply because he found the second charge proven, as might be expected. Instead, he went on to consider whether the first charge was proved – independently of the second – and concluded that it was not. His reasons for doing so are important to this appeal, notwithstanding that WorkSafe does not challenge the Judge’s conclusion in respect of that charge.
Health and Safety at Work Act 2015
[111] Before embarking on the Judge’s reasons and the questions that arise on this appeal, it is necessary to say a little about HSWA as a whole.
[112] HSWA replaced the Health and Safety in Employment Act 1992 (“the 1992 Act”). The major catalyst for the replacement of the 1992 Act was the Pike River Coal Mine tragedy.
[113] Following that tragedy, the then Minister of Labour established an Independent Taskforce on Workplace Health and Safety in June 2012. The Taskforce’s mandate was to critically assess whether New Zealand’s workplace health and safety system was fit for purpose, and to recommend practical strategies for reducing the rate of workplace fatalities and serious injuries by 2020. One of its key recommendations was for the enactment of a new work health and safety statute based on Safe Work Australia’s “model” workplace health and safety law for the Australian commonwealth, states, and territories.25 Safe Work Australia developed this “model” law in order to harmonise workplace health and safety laws across Australia’s state and federal jurisdictions.26
[114] The Independent Taskforce’s recommendation was ultimately accepted. In 2014, the Health and Safety Reform Bill was introduced for its first reading. It was based largely on the Australian “model” law. In 2016, HSWA was passed into law.
[115] HSWA’s “main purpose” is to provide “a balanced framework to secure the health and safety of workers in workplaces”.27 It does this by:
(a)protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant; and
(b)providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues in relation to work health and safety; and
25 The Report of the Independent Taskforce on Workplace Health and Safety | He Korowai Whakaruruhau (April 2013) [Report of the Independent Taskforce].
26 See Safe Work Australia “History of the model WHS laws” < and Safety at Work Act 2015, s 3.
(c)encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting PCBUs and workers to achieve a healthier and safer working environment; and
(d)promoting the provision of advice, information, education, and training in relation to work health and safety; and
(e)securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
(f)ensuring appropriate scrutiny and review of actions taken by persons performing functions or exercising powers under this Act; and
(g)providing a framework for continuous improvement and progressively higher standards of work health and safety.
[116] The first of those objects – protecting workers and other persons against harm to their health, safety, and welfare – is of obviously especial importance.28 This is because the Act provides that in furthering that aim:29
regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work or from specified types of plant as is reasonably practicable.
[117] The 1992 Act was based principally on the employee/employer relationship. The significance of HSWA (and the Australian “model” law that inspired it) is that it goes further. This is because HSWA imposes duties aimed at ensuring workplace health and safety not simply on employers, but on all “persons conducting a business or undertaking” (“PCBUs”); their officers; and those carrying out work in any capacity for them.
[118] The concept of a PCBU was adopted to ensure that the responsibility for workplace health and safety extended to “all relationships between those in control of workplaces and those who are affected”.30 As such, the definition of a PCBU is broad. Unless the context otherwise requires, a PCBU:31
28 WorkSafe New Zealand v Doug SH Auckland Ltd [2020] NZHC 3368, (2020) 17 NZELR 841 at [28].
29 Health and Safety at Work Act 2015, s 11
30 The Independent Taskforce recommended that as part of this new legislation, the concept of a PCBU should be adopted so that workplace health and safety duties “extend to all relationships between those in control of workplaces and those who are affected”: Report of the Independent Taskforce, above n 25, at 4.
31 Health and Safety at Work Act 2015, s 17(1).
(a)means a person conducting a business or undertaking—
(i)whether the person conducts a business or undertaking alone or with others; and
(ii)whether or not the business or undertaking is conducted for profit or gain; but
(b)does not include—
(i)a person to the extent that the person is employed or engaged solely as a worker in, or as an officer of, the business or undertaking:
(ii)a volunteer association:
(iii)an occupier of a home to the extent that the occupier employs or engages another person solely to do residential work:
(iv)a statutory officer to the extent that the officer is a worker in, or an officer of, the business or undertaking:
(v)a person, or class of persons, that is declared by regulations not to be a PCBU for the purposes of this Act or any provision of this Act.
[119] In the same vein, a “worker” means an individual who carries out work in any capacity for a PCBU.32 This includes not only employees but also contractors or subtractors; apprentices or trainees; or – in certain contexts – volunteers.33
[120] The primary responsibility for workplace health and safety under HSWA rests with PCBUs. To that end, HSWA imposes no less than eight duties on PCBUs. The first, and most fundamental,34 is the “primary duty of care” set out in s 36. Section 36 relevantly provides as follows:
(1)A PCBU must ensure, so far as is reasonably practicable, the health and safety of—
(a)workers who work for the PCBU, while the workers are at work in the business or undertaking; and
(b)workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.
32 Section 19.
33 HSWA limits those who are “volunteer workers”. For example, those who participate in a fund- raising activity; or who assist with sports or recreation for an educational institute, sports club or recreation club, are not volunteer workers under the Act.
34 Linfox Logistics (NZ) Ltd v WorkSafe New Zealand [2018] NZHC 2909 at [52].
(2)A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
(3)Without limiting subsection (1) or (2), a PCBU must ensure, so far as is reasonably practicable,—
(a)the provision and maintenance of a work environment that is without risks to health and safety; and
(b)the provision and maintenance of safe plant and structures; and
(c)the provision and maintenance of safe systems of work; and
(d)the safe use, handling, and storage of plant, substances, and structures; and
(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)the provision of any information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.
[121] Section 37 – the duty with which this appeal is principally concerned – is one of several so-called “upstream” duties imposed on PCBUs. The provision imposes a duty on a PCBU “who manages or controls a workplace”. Given its centrality to this case, it is appropriate to set the provision out in full:
(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.
(2)Despite subsection (1), a PCBU who manages or controls a workplace does not owe a duty under that subsection to any person who is at the workplace for an unlawful purpose.
(3)For the purposes of subsection (1), if the PCBU is conducting a farming business or undertaking, the duty owed by the PCBU under that subsection—
(a)applies only in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm
buildings that are necessary for the operation of the business or undertaking:
(b)does not apply in relation to—
the main dwelling house on the farm (if any); or
(ii)any other part of the farm, unless work is being carried out in that part at the time.
In this section, a PCBU who manages or controls a workplace—
(a)means a PCBU to the extent that the business or undertaking involves the management or control (in whole or in part) of the workplace; but
(b)does not include—
(i)the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or
(ii)a prescribed person.
[122] Section 20(1) supplies the definition of a “workplace”. It provides – again, unless the context requires otherwise – that a workplace:
(a)means a place where work is being carried out, or is customarily carried out, for a business or undertaking; and
(b)includes any place where a worker goes, or is likely to be, while at work.
[123] It follows from that definition that a workplace is not simply a physical location. Rather, it is a physical location when used for a business or undertaking. A “workplace” therefore has a temporal element.35 Some physical locations may only be workplaces when specifically used for work while others may always be workplaces given they are locations where work is always “customarily carried out”.
[124] It is important to appreciate that s 37 sits within a series of duties that apply to PCBUs insofar as they do something. For example: if they manage or control a workplace (s 37); manage or control fixtures, fittings or plant at a workplace (s 38), or design plant, substances or structures that are to be, or could reasonably be expected
35 Michael Tooma Tooma’s Annotated Health and Safety at Work Act 2015 (Thomson Reuters, Wellington, 2016) at [HS20.02].
to be used, at a workplace (s 39). The duties imposed on PCBUs here are duties to ensure that, insofar as the PCBU does something, it does it so far as is reasonably practicable “without risks to the health and safety” of any person, or specified persons under the relevant section. What is “reasonably practicable” for a PCBU with a duty under HSWA to do is:36
that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including—
(a)the likelihood of the hazard or the risk concerned occurring; and
(b)the degree of harm that might result from the hazard or risk; and
(c)what the person concerned knows, or ought reasonably to know, about—
(i)the hazard or risk; and
(ii)ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
[125] In short, ss 37 to 43 identify the different contexts in which PCBUs may owe health and safety duties to persons or particular persons alongside, or in addition to, their primary duties of care under s 36.
[126] The content and parameters of the duties imposed by HSWA are defined by ss 27 to 34. It is not possible to contract out of any duty;37 or to transfer a duty to another person.38 Furthermore, a person may have more than one duty and more than one person may have the same duty.39 Where a PCBU has a duty in relation to the same matter as another PCBU, those PCBUs also have a duty – so far as is reasonably
(b)it obtained independent advice, as reasonable in the circumstances, regarding the volcanic and seismic activity levels on the Island if, in the licensee’s opinion, the risks and dangers of visiting the Island were unreasonable or imprudent with regard to danger; and
(c)all visitors were properly equipped at all times to “manage safely such hazards as they may encounter”, including “suitable clothing and footwear, gasmask and hard hat”.
[278] These were all responsible requirements for WML to have imposed, consistent with its obligation to ensure that the walking tour operators were properly appraised of the risks of being there and operating on the walking tour workplace.
[279] As a landowner who was merely permitting others to undertake their own activities on their land for a fee, it is difficult to see what more could reasonably have been expected of WML.
(b)Reliance on Government agencies
[280] Notwithstanding the foregoing analysis, I do not accept that it was unreasonable for WML to have relied on EMBOP, the Whakaari Response Plan or the indications from all key government stakeholders that tour operators could continue, business as usual, after the 2016 eruption in lieu of obtaining its own risk assessment. Or, for that matter, that it was not reasonably practicable for it to conclude that in light of those arrangements, adequate risk assessments had been undertaken. My reasons follow.
[281] First, I disagree with WorkSafe’s position on this appeal that it was unreasonable for WML to rely on the EMBOP and the Whakaari Response Plan to ensure that the “societal risk” was managed on Whakaari, whether before or after the 2016 eruption.
[282] I acknowledge Mr Gibson’s evidence that it was necessary for WML to understand the “societal risk” that would be created through its “operations” – namely, permitting tours to proceed on the Island. Mr Gibson defined that risk as “the maximum number of fatalities and serious injuries that could occur (based on [the] expected maximum number of people on the Island at any given time), and the frequency of high numbers of people on the Island”. His expert opinion was that WML needed to understand this risk, that WML had placed “an over reliance on GNS to assess and monitor volcanic risks” and that WML could not rely on an assessment for GNS staff or a tour operator. He said:
To meet its duty, WML needed to conduct (or obtain) an assessment for its specific context, which included allowing workers to regularly (e.g. daily) visit the island and be exposed to the volcanic risk (while guiding visitors), along with many visitors (e.g. over 50 people) being exposed on busy days. WML needed to understand the risk associated with an eruption in terms of how many people could be seriously harmed or killed, and the likelihood of those consequences occurring at the various alert levels that providing access was going to be considered.
[283] However, while I accept Mr Gibson’s evidence that the societal risk of permitting access to Whakaari needed to be understood, I disagree with WorkSafe’s submission that it follows from Mr Gibson’s evidence that it was only WML which was capable of doing so and thus that it therefore had to obtain a risk assessment for itself in this case.
[284] With respect, I consider that submission to ignore the wider regulatory context in which Whakaari was overseen and, in particular, the role that EMBOP played. As noted, under s 17 of CDEMA, EMBOP was required to identify, assess and manage the hazards and risks associated with Whakaari. It was to that end that it authored the Whakaari Response Plan. Under that Plan it was EMBOP who was responsible for “managing the hazards and risks” associated with Whakaari. The Plan provided that it was EMBOP who was to inform the public of the risks associated with the Island and, if necessary, to implement measures to minimise those risks. The Plan also provided that it was EMBOP who would make any decision to restrict access to the Island. The Whakaari Response Plan’s “purpose” was to provide a “clear procedure” for EMBOP to follow in response to changes in activity on Whakaari. And, most
significantly of all, the Plan specifically addressed the issue of when risk to the public might be unacceptable when it said (again, repeated for convenience):
There may be a point in time when [EMBOP] considers that the risk to the public is too great for people to be walking on the Island or be in its immediate vicinity. This decision will be made by [the EMBOP] Group Controller in consultation with GNS, MCDEM, Police and the tour operators, cognisant of the significant financial impact to tour operator[s], but with a primary focus on managing risk to life and safety.
[285] Because of this, the Whakaari Response Plan detailed a series of options available to EMBOP in order to manage public access when it considered the “risk of visiting the Island” as being “too high”. It follows from all of this that EMBOP was seized of the societal risk of allowing the public to visit Whakaari. Its very function was to do so. Indeed, as WML submits, if a risk assessment was required in respect of allowing the public at large to visit Whakaari, it was only reasonable for WML to assume (given EMBOP’s role and expertise) that EMBOP would be the body to have obtained this.
[286] Relatedly, I cannot accept WorkSafe’s further submissions that there is no evidence that WML relied on this plan, that WML did not consult with EMBOP to “ensure a clear framework of roles and responsibilities”, or that WML could not have relied on the Plan because EMBOP “explicitly confirmed to WML” that its role was “solely in relation to response and readiness, not risk reduction”.
[287] These points may be dealt with in turn. First, the relevance of the Whakaari Response Plan lies not in whether WML subjectively relied upon it but rather with whether its existence rendered it reasonably practicable for a PCBU in WML’s position to have obtained its own risk assessment. And, relatedly, I fail to see why the Court cannot conclude that WML relied on it when the Buttles were explicitly mentioned in it and their contact details were provided. Secondly, the EMBOP provided a clear framework of roles and responsibilities – it set that right at the very beginning of the document. The fact that WML did not have a role (save for in the event that owner co-operation was needed in halting tours) does not mean that WML could not rely upon it; rather if anything it shows that others reasonably considered it to have no role to play (which is, of course, consistent with my finding that WML did not have a duty under s 37 in the first place). Finally, the meeting minutes that WorkSafe refers to in
support of its submission that EMBOP expressly disavowed any role in risk reduction do not in fact do that. Rather they simply say that EMBOP’s core services were “readiness and response”. As such, I cannot make the inference that WorkSafe argues for.
[288] Accordingly, the Whakaari Response Plan was not simply, as WorkSafe submits, a “response plan”, and not a “risk reduction” or “risk readiness plan”. Rather, as WML rightly submits, it is clear from both the Whakaari Response Plan as a whole and from EMBOP’s statutory responsibilities under CDEMA that EMBOP was, itself, required to understand the broader “societal risk” of allowing people to access the Island and that the Whakaari Response Plan was integral to how it understood and managed this risk.
[289] WorkSafe further submits that WML could not rely on EMBOP or the Whakaari Response Plan during the charging period because of s 6 of CDEMA. That provision provides as follows:
Unless this Act otherwise provides, this Act does not limit, is not in substitution for, and does not affect the functions, duties, or powers of any person under the provisions of any enactment or any rule of law.
[290] With respect, I cannot accept the submission. The issue here is not whether EMBOP’s responsibilities affected the existence of WML’s duties under HSWA (for which s 6 of CDEMA makes clear that they do not), but rather whether EMBOP’s responsibilities shaped the way in which WML discharged its own duties. This is because under HSWA, the discharge of any duty turns principally on what is reasonably practicable to expect a duty-holder to do in order to ensure health and safety. The fact that EMBOP was tasked with the obligation to understand and manage the societal risk of permitting tours to Whakaari is obviously relevant to whether it was reasonably practicable for WML to – in the furtherance of any duty it held under HSWA – obtain a risk assessment. Indeed, a similar point was made by Mr Gibson when he said that it might not be reasonably practicable to expect every PCBU in a building, for example, to obtain a report on the building’s structural integrity after an earthquake if this is the kind of thing that every PCBU will need to have access to.
[291] Of course, with the benefit of hindsight, it is apparent that neither EMBOP nor the Whakaari Response Plan was capable of preventing the tragedy which unfolded on 9 December 2019. But the critical question is whether it was reasonably practicable for WML to have expected EMBOP and the Whakaari Response Plan to have been adequately appraised of the societal risk that needed to be understood at the time of the charging period. Given EMBOP’s statutory role, the involvement which GNS had in creating the Whakaari Response Plan and the institutional health and safety expertise that it possessed, it is difficult to see why WML should not – at the time – have trusted that EMBOP and the Whakaari Response Plan had its bases covered.
[292] Secondly, I disagree that any such reliance on the Whakaari Response Plan or the EMBOP was unreasonable after the 2016 eruption, as the Judge concluded. It pays to recall that immediately after that eruption, the Minister of Civil Defence directed that a meeting take place among the interested government agencies. Its purpose was to report back to the Minister on the sufficiency of the statutory powers available for managing visitor safety on Whakaari. As noted, the outcome of that meeting was that the relevant agencies were confident that when “significant volcanic activity occurs there are robust arrangements for escalating the response”. The relevant agencies all considered the then statutory framework to “provide adequate protections, in line with the principle of placing responsibility for safety at the appropriate level, and notwithstanding that there is always a residual safety risk in areas where natural hazards occur without warning”. Importantly, the Whakaari Response Plan was also updated after the 2016 eruption. Indeed, it was adopted less than three months before the 2019 eruption took place.
[293] As WML rightly emphasises, several different government agencies, with relevant expertise available to them, came to the collective view that tour operators could effectively continue business as usual after the 2016 eruption. They did so knowing full well what the likely consequences would have been if the 2016 eruption took place during the day, while tours were taking place. Indeed, in WorkSafe’s own efforts to persuade WML of the need for the walking tour operators to be registered under the Adventure Activities Regulations, one of its officials referred to the regulations as providing confidence that injuries would not result from controllable
risks “even though there still remains an un-controllable risk of death from an event like the April 2016 overnight eruption if it should occur during a tour day”.
[294] Moreover, these agencies were, as WML says, comprised of some of New Zealand’s leading experts in health and safety. And, in any event, they were organisations charged with considering risks to the public at large. In that regard, it is difficult to see why WML should be expected to have second guessed this assessment for itself, contrary to all the indicators that it had at the time. With great respect to the Judge, I consider it difficult to see why WML was not entitled to do so unless, of course, one takes advantage of hindsight.
[295] Finally, I cannot accept WorkSafe’s submission that it was unreasonable for WML to rely on the audits of White Island Tours in 2014 and 2017 in order for the tour operator to be registered under the Adventure Activities Regulations, in lieu of obtaining its own risk assessment. And, relatedly, that White Island Tours’ registration was a further factor militating against it being reasonably practicable to obtain its own risk assessment.
[296] On this point, WorkSafe submits that any reliance by WML was misplaced because:
(a)The audits were not “WorkSafe approved”. At the time of the 2019 eruption, the regulatory regime was entirely devolved – once an applicant passed a safety audit, WorkSafe was required to register the applicant as an adventure activity operator, unless certain exceptions applied. To this extent, WorkSafe’s role was administrative.
(b)The audit of White Island Tours was not an audit of WML’s business. Nor was it one that considered “the totality of the risk of permitting tours to Whakaari”. In that regard it could not relieve WML of its own obligations to obtain a risk assessment.
(c)The expert evidence was that any such reliance was unreasonable.
[297] Again, these objections can be taken in turn. First, I cannot accept that WML’s reliance on the audits of White Island Tours were unreasonable because they were undertaken by an independent third party. Under reg 9 of the Adventure Activities Regulations as they stood at the time, it was WorkSafe’s responsibility to recognise a person or organisation as a “safety auditor” if satisfied, among other things, that they had the appropriate experience and qualifications to carry out the proposed audits. Thus, while the audit of White Island Tours was not undertaken by WorkSafe, it was necessarily undertaken by a WorkSafe approved auditor. It follows that if WorkSafe approved an organisation to be a safety auditor, and that safety auditor gave an approving audit to a PCBU, then reliance on the result of that audit was reasonable. It is wholly unrealistic to expect WML to go beyond that. Indeed, as the Judge said, WML should not have been required to “audit an audit”.
[298] Secondly, while an audit of White Island Tours would not have been an audit which appraised the total societal risk of allowing people to visit Whakaari, that particular risk was – as I have mentioned – already addressed (or could reasonably have been expected to be addressed) by EMBOP under the Whakaari Response Plan. As such, any reliance that WML had on these audits was reasonable in this case because it was coupled with its reliance on EMBOP and the Whakaari Response Plan.
[299] Relatedly, it is also worth noting that White Island Tours provided the vast majority of tours to Whakaari (taking approximately 80 per cent of all tourists to the Island in the 2017 to 2018 year). As such, any risk assessment that it undertook would have been a risk assessment that appraised the risk of a fatality from multiple group visits over a year. It would, therefore, have been entirely reasonable in my view for WML to rely on the fact that White Island Tours had been successfully audited twice, including after the 2016 eruption.
[300] Thirdly, I cannot accept that WML’s reliance on the audits of White Island Tours was unreasonable simply because there was expert evidence to the contrary. On this point, WorkSafe referred to the expert evidence of Mr Gibson and Dr Christopher Peace, another leading health and safety expert in New Zealand. The evidence of Dr Peace was that, in his opinion, White Island Tours could only have obtained “misguided comfort” from the fact that it passed its audit for registration as
an adventure activity operator in 2017. Similarly, the evidence of Mr Gibson was that any such audits “would not have provided any assurance” in his mind. However, both Dr Peace and Mr Gibson properly acknowledged that their views were informed by their expertise with respect to workplace health and safety. And they also acknowledged that from the perspective of the “layperson”, reliance on these audits was reasonable. Dr Peace accepted this in response to questions from Judge Thomas himself, while Mr Gibson plainly acknowledged that “assurance” was “the intention of the Adventure Activity Regulations”.
[301] Fundamentally, the purpose of requiring an audit under the Adventure Activities Regulations was to provide assurance than an adventure activity operator’s own operations were safe, and that the relevant risks were understood and managed. Indeed, as WorkSafe said to Andrew Buttle in its email of 5 November 2018 (again, repeated for convenience):
The goal of these Regulations is to provide customers (and government) with internationally credible assurance that operators are managing safety in a systematic way, to a high standard. This helps to support safety for customers of course, and is also expected to protect the industry from reputational damage: if the inherent risks of adventure should lead to death or permanent injury but an un-controllable factor caused the incident, registration (and the auditable system trail) gives demonstrable confidence that the operator was not at fault.
(Emphasis added).
[302] As WML submits, WorkSafe’s own message was effectively that the purpose of the audit was to ensure that in the event of an eruption like that in April 2016, an audit should make clear that a registered adventure activity operator’s safety systems were not at fault. And while Mr Laurenson KC’s review revealed serious deficiencies with these audits, it was the Judge’s unchallenged finding that WML did not know of these deficiencies. In these circumstances, it is difficult to see how WML could not have relied on the fact of White Island Tours’ successful registration as an adventure activity operator both before and after the 2016 eruption.
[303] It follows in my view that it was not reasonably practicable for WML to obtain its own risk assessment. Fundamentally, any duty that it reasonably had was one to proffer information about the risks inherent its land, as a landowner. However, and
notwithstanding that position, it was EMBOP’s statutory role and responsibility under the Whakaari Response Plan to manage the societal risk of permitting the public to visit the Island. The objective message that was sent by White Island Tours’ successful registration as an adventure activity operator was that the largest provider of tourists to the Island carried out its business safely, that it understood and managed the risks of sending multiple groups of people to the Island for most of the year and that its processes for managing health and safety were rigorous.
[304] Finally, and perhaps most importantly, the status quo was effectively endorsed after the 2016 eruption: the conclusion of interested agencies was that the current statutory regime was working, White Island Tours was successfully audited again in 2017 and the Whakaari Response Plan was updated again in 2019, just mere months before the 2019 eruption took place. It necessarily follows in my view that WML was entitled to rely on the Government agencies to address the need to understand and respond to the societal risk that WorkSafe says only it had the ability to understand and therefore control. And it was not unreasonable for WML to think that adequate risk assessments had been undertaken by others.
Was it reasonably practicable for WML to carry out the further particulars?
[305] The Judge concluded that because WML failed to undertake a risk assessment (as he found it was required to do), WML necessarily failed to successfully manage its risks. He concluded, as a result, that WML consequently failed to:
(a)properly consult, co-operate and co-ordinate as to the hazards and risks posed to workers and tourists from volcanic activity;
(b)monitor and review those hazards;
(c)ensure that workers and tourists were supplied with appropriate PPE; and
(d)ensure that there was an adequate means of evacuation from Whakaari.
[306] WML challenges the Judge’s conclusion on the basis that he failed to give adequate consideration to these further particulars. Fundamentally, WML says that even if it was under an obligation to conduct a risk assessment, it did not necessarily follow that it therefore failed “in every other aspect”.
[307] WorkSafe submits that the Judge was right to conclude that WML’s failures in respect of the other particulars followed from its failure to obtain or to ensure an adequate risk assessment was undertaken. In essence, it says that WML could not have taken these further reasonably practicable steps if it did not obtain a risk assessment that enabled it to understand the necessity of these steps in the first place. For that reason, it says that the Judge did not err in failing to adequately consider the further particulars with which it was charged. WorkSafe nevertheless submits that justice did not miscarry from the Judge’s economical consideration of the further particulars in any event, given there was sufficient evidence to prove each of these particulars.
[308] Given my conclusion that it was not reasonably practicable for WML to have obtained a risk assessment for its own business; I agree with WML that the Judge’s findings in respect of the other particulars must be impugned. The foundation for the Judge’s conclusion that these steps were reasonably practicable was that they would have been identified by a risk assessment had WML obtained one, or ensured that one was undertaken. It necessarily follows that if it was not reasonably practicable for WML to have done this (or if WML was entitled to conclude that such a risk assessment had been obtained from others), it was not reasonably practicable for WML to have taken the further steps said to arise from that condition precedent. That, in my view, provides a complete answer to the evidence which WorkSafe refers to in respect of the other particulars.
[309] It follows, therefore, that on my review of the evidence, WML did not breach any duty under s 37 that it might have had.
Would compliance with its duty have prevented risks of death or serious injury?
[310] Given my foregoing conclusions it is not strictly necessary to deal with this final challenge brought by WML. However, I shall briefly consider it if only because
it was subject to argument and because it will be instructive to any appeal against this decision.
[311] WML submits that the Judge nevertheless erred in finding that it committed an offence under s 48 of HSWA because, fundamentally, none of the reasonably practicable steps it should supposedly have taken would have made a difference. It says in this case no one predicted the 2019 eruption, and there were no effective controls to mitigate against the risk of an eruption, short of stopping tours altogether, which was not WorkSafe’s case. It also says that even with better communication with GNS, such communication would not have made a difference given GNS’s advice on 18 November 2019 was that there was “no higher risk” for people visiting the Island.
[312] On this aspect of WML’s appeal, I must disagree. The inquiry here is whether, assuming that WML had a duty under s 37 and assuming that it was reasonably practicable for it to have taken the particular reasonably practicable steps alleged, that its failure to do so exposed any individual to a risk of death, serious injury or illness. That is not a “but for” test but rather, as WorkSafe submits, a test of whether the failure was a “substantial” or “significant cause” of exposing any individual to a risk of death, serious injury or illness.
[313] If WML was under an obligation to obtain its own risk assessment and to have better consulted with GNS and the tour operators, it is likely that these steps would have reduced the risks that tourists were exposed to. And, relatedly, while it may not have been WorkSafe’s case that WML should have halted tours to Whakaari, it is plausible to think that if these steps had been carried out, tours would have been halted after the 2016 eruption.
[314] Furthermore, I agree with WorkSafe that it is too speculative to suppose that GNS’s advice would have been the same as that which GNS tendered to NEMA in late November 2019, and so it would not have made a difference. The expert evidence of Professor Noel Procter, another leading volcanologist who gave evidence at trial, is instructive here. As part of its own internal staff risk analysis, GNS created reports that contained hazard maps illustrating a constantly changing baseline level of risk. This level of risk was then represented as a map with a circular ring around the crater
lake. The area within that ring represented the area that GNS considered too dangerous for its own staff to enter without approval from a specified GNS staff member. In short, the greater the risk; the wider the exclusion zone was. In the lead up to the 9 December 2019 eruption, the exclusion zone went from 220m from the crater rim on 30 September 2019 to 520m by early December 2019. Professor Procter’s expert evidence was that this showed that GNS was aware of the increasing risk of an eruption over the course of these months and that it communicated this risk internally via an easily digestible and comprehensible visual aid. In short, the use of these maps with increasing danger zones illustrated that the probability of eruptive activity on Whakaari had increased, and that GNS was reacting to that increased risk by imposing access restrictions for its workers.
[315] Professor Procter’s expert opinion was that this information would have been “very useful” for WML, the tour operators, and NEMA. It follows from this evidence that if WML had been under an obligation to obtain the kind of risk assessment from GNS which it had urged on the tour operators, and if it had kept in regular communication with GNS, that it would have learnt of precisely the same information that GNS was circulating amongst its own staff in respect of the risks on Whakaari. It is reasonable to suppose, therefore, that if WML had the duty alleged and if it breached that duty, that its failure to obtain the kind of insight that Professor Procter refers to here would have directly informed any decision as to whether to continue to allow tours to take place (supposing that WML had such a power in the first place).
[316] For these reasons, I do not accept that even if WML had breached any duty under s 37, it would not have exposed any individual to a risk of death, serious injury or illness. Accordingly, had I not found in WML’s favour on the earlier issues, I would not have allowed the appeal on this final challenge to the Judge’s reasons.
Concluding comments
[317] In coming to this decision, I have not overlooked nor minimised the unquantifiable tragedy that will forever be linked to 9 December 2019 and Whakaari. Nor do I ignore the unfathomable pain, grief and suffering of the families and loved ones of the 22 people who died as a result of the eruption, nor the pain and suffering
of those who survived and have been irreversibly emotionally and physically scarred forever by the horrific events of that day.
[318] The 47 people who were on Whakaari at the time it erupted should never have been there. The fact that they were reveals, in great measure, the multiple systemic failures which are discussed earlier in this judgment. It is impossible not to be deeply moved and affected by the sheer scale and nature of the human loss in this case.
[319] However, this appeal has been decided on what I consider the particular law and facts reveal on the question of WML’s criminal liability. That has been the focus of the inquiry on this appeal. The task of every Judge is to apply the law objectively, clinically and dispassionately, uninfluenced by their personal views and natural human sympathies. That approach reflects the judicial oath which every Judge is bound by, that is to judge without fear or favour, affection or ill-will.
[320] The determination of this appeal has turned on what essentially boil down to relatively narrow legal questions: the interpretation of s 37 of HSWA; its application to the facts and the question of what was reasonably practicable for WML to have done as required under HSWA. In doing so, I have departed from the trial Judge’s conclusions. I intend no criticism of him in doing so. In some respects, this is a case where reasonable minds have differed.
Result
[321] The appeal is allowed. Whakaari Management Ltd’s conviction under s 48 of the Health and Safety at Work Act 2015 for a breach of s 37 is quashed.
Moore J
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