By Olivia Van Burgsteden

*Author’s note: Since the publishing of this article, the charges against the three individuals, the Buttles, have been dropped, as have the charges against two organisations, ID Tours New Zealand Limited and Tauranga Tourism Services Limited.

The three individuals and two organisations were successful in having their charges dismissed. There was a lack of evidence against the Buttles, and no duty was found to be owed by the two organisations.*

Introduction

The horrific White Island eruption that took place on the 9th of December 2019 has finally arrived in court. Beginning on the 11th of July, Judge Evangelos Thomas is presiding over a judge alone trial that is expected to last 16 weeks. After the horrifying event that claimed 22 lives and left 25 injured, Worksafe charged 13 parties with health and safety breaches leading up to the eruption. This included 10 organisations and 3 individuals. Since the charges were brought in November 2020, six organisations have pleaded guilty, namely four helicopter companies, GNS Science and White Island Tours. The charge against the National Emergency Management Agency has since been dismissed. This article aims to explain the White Island Eruption Court Case and the charges alleged against the defendants.

The remaining three individuals and three organisations who are contesting their charges are being charged for failures under the Health and Safety at Work Act 2015.

 

The Buttles and Whakaari Management Limited

The three individuals facing charges are the owners of White Island, Andrew, James, and Peter Buttle. The island is privately owned and has been in the Buttle family since 1936. The three Buttles also are the directors and own an equal share in the holding company Whakaari Management Limited. The three defendants are each facing a charge under s 44 of the Health and Safety at Work Act 2015 for failing to exercise due diligence as officers of a Person Conducting a Business or Undertaking (PCBU). The Buttles had previously tried to have their charges dismissed by arguing that the charging document did not have sufficient details as to their charges under s 147 of the Criminal Procedure Act. However, this was dismissed by the judge as the documents were found to not be defective.

 

The charging documents set out that the Buttles failed to take four reasonable steps. These include failing to keep up-to-date knowledge of work, health, and safety matters; failing to have a sufficient understanding of the risks associated with access to white island; failing to ensure they had the appropriate resources to eliminate or minimize the risks to health and safety regarding access to white island; and failing to ensure that they had a process for complying with duties under the Health and Safety at Work Act 2015. The charge comes with a maximum fine of $300,000.   

 

The Buttles’ holding company is also facing the same charge, although separate to the charges facing the Buttles as individuals. The company faces a charge for failing to comply with a duty to ensure the health and safety of other persons so far as is reasonably practicable. The charge comes with a maximum fine of $1.5 million.

 

The Buttles told Worksafe investigators that they relied on the people who were on the island and actively observing it to assess the risk of any potential danger. They expected GNS Science and the tour operators to be in communication about the risk the island posed. They also said that there was nothing they could contribute on a day-to-day basis. Instead, they believed they had put everything in place they possibly could have to ensure undertakings on the island ran safely. This included a shipping container being installed in 2019 to provide tourists with shelter during an emergency. Despite appearing as though they did little to ensure safety and would therefore result in them breaching their duty, Worksafe initially was not going to charge the Buttles due to lack of evidence.

 

ID Tours New Zealand Limited and Tauranga Tourism Services Limited

ID Tours New Zealand Ltd is a destination management company who liaised between the Royal Caribbean Cruise Line and Tauranga Tourism Services Limited. Tauranga Tourism Services Limited acted as the local agent for the tour provider, White Island Tours Limited. ID Tours and Tauranga Tourism have both been charged under s 36(2) of the Health and Safety at Work Act 2015.

 

The charge alleges that ID Tours and Tauranga Tourism failed to comply with a duty to ensure the health and safety of other persons so far as is reasonably practicable. Section 36 sets out the primary duty that all PCBUs must adhere to. PCBUs must ensure the health and safety of workers who work for the business or undertaking and those who are influenced or directed in carrying out their work by the business or undertaking. Under s 36(2), this extends to all other persons affected by the carrying out of work for the business. A non-exhaustive list of things a PCBU must do in order to satisfy the primary duty are found in subsection 3.

 

Whilst ID Tours accepted that they had a duty under s 36(1), they argued that the duty did not extend to s 36(2). They, therefore, attempted to have their charge dismissed. However, it was held that ID Tours duty did indeed extend to s 36(2) and therefore, they owed a duty to the tourists on White Island.

 

For ID Tours and Tauranga Tourism, the case is that the information provided to the tourists regarding the risk White Island posed was inadequate. The evidence will focus on what the defendants did to manage the risk and whether that management was adequate. The tourists who embarked onto White Island did not receive any health and safety information prior to the outing, including no information about the volcanic risk.

 

A key part of the case against ID Tours and Tauranga Tourism will be the connection between the supplier and the consumer. A supply chain existed between ID Tours who acted as a booking agent for those travelling on cruise ships to visit the island, and between Tauranga Tourism who acted as the agent for the tour company White Island Tours Limited. The Health and Safety at Work Act does not state what duties exist when there is a supplier and consumer connection. But as the Act’s purpose sets out that it serves to protect workers and workplaces, it is likely that the principle of ensuring the health and safety of others as is reasonably practicable will still be applicable.

 

Conclusion

Regardless of the outcome, the White Island Eruption Court Case stands as a reminder of the devastating consequences that can arise when health and safety regulations are not diligently upheld. The trial is set to explore the adequacy of risk management measures and information provided to tourists, shedding light on the intricate dynamics of accountability within the tourism industry.

 

The court's deliberations will undoubtedly shape future practices and policies regarding health and safety standards. Ultimately, the White Island Eruption Court Case stands as a solemn testament to the importance of safeguarding lives through stringent adherence to health and safety regulations, offering a chance for justice to be served and for lessons to be learned from this tragic event.

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