Whakaari Island Eruption: Lessons From The WHS Prosecution

• Published date: 13 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury
• Law Firm: Holding Redlich
• Author: Mr Michael Selinger

A significant work health and safety prosecution in New Zealand, which arose from the catastrophic volcanic euption on Whakaari Island, sends a strong message to all landowners who licence access to tour operators regarding their duty of care under safety laws, as well as those persons conducting a business or undertaking (PCBUs) that operate tours in high-risk environments.

The eruption in 2019, which resulted in the deaths of 22 people, occurred when more than 40 tourists and guides were on the island managed by Whakaari Management. It followed on from a similar eruption in 2016.

Whakaari Management was charged with being a PCBU with management and control of a workplace. The company argued unsuccessfully that it did not have control over any relevant workplace on the island. By contrast, the Court found that Whakaari Management, in licensing access to tour operators and obtaining advice from the Institute of Geological and Nuclear Sciences Ltd (GNS) as to risks from the volcano, could and did exercise practical control over the tour operator's workplaces, even if it did not direct or influence the activities of the staff and customers of those tour operators.

The Court found that Whakaari Management breached its duty of care by relying solely on the information from GNS without assessing its relevance. The information, which was related to GNS scientific staff and not tourists, was also found by the Court to have been passed to Whakaari Management in an "ad hoc, infrequent, unstructured, informal and incomplete" manner. Further, it was apparent that no review of Whakaari Management's risk assessment of the island took place after the 2016 eruption.

Whakaari Management was fined NZ$1,045,000...