Whakaari appeal: Onus on island owners to ensure safety — WorkSafe

WorkSafe's lawyer has told a court the owners of Whakaari/White Island were responsible for ensuring the workplace it was granting access to, a volcanic island, was safe.

Whakaari Management, and four other companies, were fined and ordered to pay more than $10m in reparations for health and safety failings in the lead-up to the 2019 volcanic eruption that killed 22 people.

It is the second day of an appeal hearing in the High Court at Auckland, in which the owners of the island, James, Andrew and Peter Buttle, are challenging the criminal conviction of their company.

Survivors and victims' families are listening to the hearing remotely.

WorkSafe prosecutor Kirsty McDonald KC said Whakaari Management (WML) was a business that managed an active volcano as a workplace, licensing land to tour operators.

"The land was an active volcano and uncontrollable hazard. Its business, the way it generated revenue, was to charge licence fees and commissions for permitting tour operators and tourists to walk on the very top of a live volcano crater."

McDonald said WML permitted others to conduct work on its land and stipulated the terms.

"In those circumstances, it is uncontroversial that WML had a duty to ensure, as far as reasonably practicable, that the workplace it was granting access to was without risks to the health and safety of any person."

She said the workplace was the hazard — an active and uncontrollable volcano, and the risk could not be eliminated.

After the deadly eruption in 2019, WorkSafe conducted an extensive investigation into health and safety and took its findings to trial — WML was fined $1m and ordered to pay $4.8m in reparations to victims and their families.

The focus of the appeal hearing is on section 37 of the Health and Safety at Work Act (HASWA), which requires the person controlling or managing a workplace to ensure anything arising from the workplace, including entries and exits, are without health and safety risks.

On Tuesday, the owners' lawyer Rachael Reed KC said they brought the appeal because WML granted access to the island but did not run or supervise the tours.

She said, as the landlord, it was not managing a workplace and had no safety duty under health and safety law.

"Just like any landowner, it had the ability to and did grant the right of access to the land through licences. That is what it did. It did not run the tours. It did not direct or supervise the tours."

Reed said the tour companies, who have pleaded guilty under HASWA, put tourists in harm's way and were there to manage their safety.

"WML gave the right to access Whakaari and The Walking Tour site when approached by the tour operators and asked to do so. And they asked the tour operators to use that right of access responsibly. That is the extent of it."

Reed also said Whakaari Management's conviction had "concerning implications" for other landowners who were waiting for the outcome of the appeal hearing before deciding whether to grant access to their property.

McDonald told the court on Wednesday that the conviction was not an extension of the current law and would not have a "chilling effect" on land owners or managers.

"A finding that WML owed this duty does not create new obligations on land owners or land managers, they exist already."

She said the case involves a "straightforward application of statutory provision, the purpose of which is to protect workers and other persons against harm to their health, safety and welfare by eliminating or minimising risks from work".

McDonald said WML was not a standard commercial landlord because there was risk of mass casualties.

"The circumstances in which this duty arises are unique because WML's business was unique. It involved licensing out the volcano.

"This differentiates it from the vast majority of land managers in New Zealand and differentiates it from ... most adventure activities in New Zealand."

She said the landlord had a duty and needed to ask "can I ensure that the workplace, anything arising from the workplace and the means of entering and exiting the workplace, are without risks to the health and safety of any person?

"Can work be carried out safely on land that I manage?"

The hearing continues on Thursday.

rnz.co.nz

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