A New Zealand judge has overturned the criminal conviction of the owner of an island volcano where 22 people died in an eruption.
The ruling has absolved the company, Whakaari Management, from paying millions of pounds in restitutions to the families of those who died and the two dozen survivors who were seriously injured.
Forty-seven people were on Whakaari, also known as White Island, when it erupted in December 2019.
Most were passengers from US and Australian cruise ships on a walking tour, along with their local guides.
Two British women, Liz and Heather McGill, were seriously injured in the eruption.
Whakaari Management, run by three brothers who own the active volcano, was initially found guilty in a 2023 trial of breaching New Zealand’s workplace health and safety law by failing to keep visitors safe.
The brothers appealed their convictions in a hearing last October at the High Court in Auckland.
The case centred around whether the company, which granted access to the volcano to tourism operators and scientific groups for a fee, should have been in charge of safety practices on the island under health and safety laws.
The laws state that anyone in charge of a workplace must ensure the management of hazards and the safety of all there, including at entry and exit points.
During the 2023 trial, survivors testified that they had not been told the active volcano was dangerous when they paid to visit it. They also stated that they were not supplied with protective equipment, and many were wearing clothing that made their burns worse.
In Friday’s written ruling, Justice Simon Moore ruled the company did not have a duty under the relevant law to ensure that the walking tour workplace was without risks to health and safety.
He agreed with the company’s lawyers that the firm only granted access to the bare land through permits, and should not have been legally considered an entity that managed or controlled the workplace.
The judge ruled it wasn’t unreasonable for the company to rely on tourism operators, who were licensed under New Zealand law, and emergency management and scientific agencies to assess the risks of activities on the island and manage safety precautions.
A significant case for the tourism sector
The case had far-reaching implications and changed the laws governing New Zealand’s adventure tourism industry, which is often based around outdoor thrills on or around the country’s many natural hazards.
Operators must now take all reasonable steps to inform customers of any serious risks.
The lawyers for the company said during last October’s hearing that if the conviction was allowed to stand, it would make other landowners reluctant to allow such activities to take place on their property for fear of being held responsible for the day-to-day decisions of tourism businesses operating on it.
That suggestion was rejected by the New Zealand’s workplace safety regulator, which brought the charges.
Justice Moore said in Friday’s ruling that a too narrow or broad interpretation of the law governing who controls a workplace could have “profound” consequences.
Others faced charges
White Island, the tip of an undersea volcano, was a popular tourist destination before the eruption and was reached by boat or helicopter from the North Island’s Bay of Plenty. When the superheated steam blew in December 2019, it killed some instantly and left others with agonising burns.
The workplace safety regulator brought charges against a number of parties — including the company run by Andrew, Peter and James Buttle.
Six entities pleaded guilty in 2022 and 2023 to the charges they faced, including five tour companies and New Zealand’s geoscience research institute, which monitors active volcanoes.
Charges were dismissed against the Buttle brothers individually, along with two tourism logistics firms and the government emergency management agency.
In March, those convicted were ordered to pay a combined total of just over NZ$10 million (£4.5 million) in restitutions to the bereaved families and survivors. Almost half of that was due to be paid by Whakaari Management Limited.
The company filed its appeal the same month.
In his ruling, Justice Moore said he had not overlooked or minimised the “unquantifiable tragedy” of the episode.
“The 47 people who were on Whakaari at the time it erupted should never have been there,” he wrote. The fact that they were revealed “multiple systemic failures”.
The case, however, was decided on the particular law and facts and boiled down to relatively narrow legal questions, he added.
