The New Zealand High Court has overturned the conviction of Whakaari Management Limited (WML), the company responsible for granting access to Whakaari/White Island, in a decision that could have significant implications for landowners across the country.
The ruling, delivered by Justice Simon Moore, found that WML did not have a duty under the Health and Safety at Work Act 2015 (HSWA) to ensure the safety of tourists and guides visiting the active volcano, effectively absolving it of liability for the 2019 disaster that killed 22 people and severely injured 25 others.
Conviction Overturned: Court Finds WML Lacked Active Control
WML was initially convicted in 2023 by the Auckland District Court under section 37 of the HSWA, which places a duty on a person conducting a business or undertaking (PCBU) to ensure, as far as is reasonably practicable, that a workplace is without risks to health and safety. The District Court ruled that WML, by granting licences to tour operators to conduct guided walks on the island, was responsible for ensuring visitor safety.
As a result, WML was fined NZ$1.045 million and ordered to pay NZ$4.88 million in reparations to the victims and their families. However, WML appealed the conviction, arguing that it did not actively manage or control Whakaari as a workplace and therefore should not be held responsible for the eruption’s devastating consequences.
In his ruling, Justice Moore sided with WML, stating that the company’s role was limited to granting access to the island and that it had no direct control over the daily operations of tour companies. The judge said that WML’s involvement did not extend beyond permitting third-party operators to conduct tours and that it was reasonable for the company to rely on those operators, as well as geological and emergency management agencies, to assess and mitigate risks.
Justice Moore, writing in his decision, acknowledged the immense tragedy but noted that legal responsibility could not be placed on WML.“The 47 people who were on Whakaari at the time it erupted should never have been there,” he said.
Key Legal Distinctions: Landowners vs. Workplace Managers
The ruling highlighted a critical legal distinction between land ownership and workplace management. Justice Moore clarified that under section 37 of the HSWA, a PCBU must have active control over a workplace for liability to apply. Simply granting access to land, even if it carries inherent dangers—as was the case with Whakaari—does not automatically impose a duty of care under the HSWA.
WorkSafe New Zealand, the workplace safety regulator that brought the charges, had argued that WML imposed safety obligations on tour operators and could revoke licences, which suggested an element of control. However, the High Court rejected this argument, stating that such measures did not constitute active workplace management.
The ruling also addressed concerns about whether WML should have conducted its own risk assessment. The court determined that it was not reasonably practicable for WML to do so, given that it was not involved in the day-to-day operations of the tours. Instead, responsibility for assessing volcanic risk lay with tour operators, who were licensed under New Zealand’s adventure tourism regulations, and with scientific agencies like the Institute of Geological and Nuclear Sciences (GNS Science).
Implications for Landowners and Adventure Tourism
The decision is expected to provide reassurance to landowners who allow commercial or recreational activities on their property. Under the High Court’s interpretation, landowners will not be held responsible for visitor safety simply because they permit access, unless they have direct involvement in managing the activities taking place on their land.
Legal experts have noted that the ruling offers much-needed clarity on the scope of section 37 of the HSWA. However, some have expressed concerns about the broader implications, questioning whether it is appropriate for a private company to generate profit from inherently dangerous land without being subject to health and safety obligations.
“This decision has put us in a position where a PCBU, which exists to make money out of its land through granting licences to inherently dangerous locations, will not attract any health and safety duties,” legal commentators from BusinessDesk noted. “This would appear to be contrary to public policy and surely could not be what Parliament intended, given the purpose of introducing HSWA in 2015.”
For the adventure tourism industry, the ruling underscores the importance of clearly defined safety responsibilities. While landowners like WML may not be liable, tour operators and other businesses conducting activities in high-risk environments will need to ensure that they meet all safety requirements, including conducting thorough risk assessments and informing customers of potential dangers.
Next Steps: Possible Appeal and Regulatory Review
WorkSafe New Zealand has acknowledged the High Court’s decision and is considering whether to seek an appeal. If an appeal is pursued, the case could be taken to New Zealand’s Court of Appeal, potentially leading to further clarification or even legislative changes to address perceived gaps in liability.
In the meantime, the ruling is expected to influence future legal cases involving landowners and workplace safety laws, particularly in relation to adventure tourism and recreational land use. It may also prompt a review of existing regulations to ensure that visitors to high-risk locations receive adequate safety protections.
For the victims and their families, the ruling represents a bitter disappointment. Some have expressed frustration that WML has been cleared of responsibility, arguing that the company profited from tourism on an active volcano without ensuring adequate protections were in place.
“If they had not opened the island up for tourism, which was purely a money making opportunity – none of this would have happened,” one survivor told RNZ last year.
While the legal battle over liability may be nearing its end, the tragedy of the Whakaari/White Island eruption remains a stark reminder of the risks associated with adventure tourism. The case has exposed critical gaps in safety oversight and will shape discussions on how New Zealand balances its thriving tourism industry with ensuring visitor safety in hazardous environments.