New vents continue to form on Whakaari/White Island as fallout from its fatal 2019 eruption still makes its way through the courts.
Photo: Provided / GNS Science

• The owners of Whakaari/White Island are challenging their company’s criminal conviction in the High Court
• They claim that the tour operators were responsible for safety because it was their job
• Whakaari erupted in 2019, killing 22 people
• Whakaari management was previously fined $1 million and ordered to pay $4.8 million in compensation for health and safety failings
• WorkSafe’s lawyer says they had a duty to ensure the workplace they allowed access to – the island – was safe.

WorkSafe’s lawyer told a court that the owners of Whakaari/White Island were responsible for ensuring that the workplace they were giving access to, a volcanic island, was safe.

Whakaari Management and four other companies were fined and ordered to pay more than $10 million in compensation for health and safety failings before 2019. volcanic eruption that killed 22 people.

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

Survivors and families of the victims listen to the hearing from a distance.

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

“The terrain was an active volcano and an uncontrollable hazard. His business, the way he generated income, was to charge license fees and commissions to allow tour operators and tourists to walk right up to the top of a live volcano crater.”

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

“In the circumstances, it is undisputed that WML had a duty to ensure, as far as reasonably practicable, that the workplace to which it was granting access did not pose a risk to the health and safety of any person.”

She said that the workplace was the danger – an active and uncontrollable volcano, and the risk could not be eliminated.

After the deadly outbreak in 2019, WorkSafe carried out an extensive health and safety investigation and took its findings to court – WML was fined $1 million and was ordered to pay $4.8 million in restitution to the 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 a person who controls or manages a workplace to ensure that any output from the workplace, including entrances and exits , does not pose health and safety risks. .

On Tuesday, the owners’ lawyer, Rachael Reed KC, said she brought the appeal because WML allowed access to the island but did not conduct or supervise the tours.

She said that as an owner she is not managing a workplace and has no safety obligations under health and safety law.

“Like any landowner, he had and granted the right of access to the land through licenses. That’s what he did. He didn’t conduct the tours. He didn’t direct or supervise the tours.”

Reed said the tour companies, which pleaded guilty under HASWA, put tourists at risk and were there to manage their safety.

“WML gave the right to access the Whakaari site and The Walking Tour when it was approached by the tour operators and asked them to do so. And they asked the tour operators to use that right of access responsibly. That’s the stretch.”

Reed also said the sentencing of Whakaari Management had “tidal implications” for other landowners who were awaiting the outcome of the appeal hearing before deciding whether to grant access to their property.

McDonald told the court Wednesday that the conviction is not an extension of current law and will not have a “chilling effect” on landowners or land managers.

“A finding that WML had this debt does not create new obligations on landowners or land managers, they already exist.”

• Learn more: Condemnation of the Whakaari eruption and implications for landowners

• She said the case involved a “simple application of statutory provisions, the purpose of which is to protect workers and others from harm to their health, safety and welfare by eliminating or minimizing workplace hazards.”

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

  “The circumstances in which this debt arises are unique because WML’s business was unique. It involved volcano licensing. This sets it apart from the vast majority of New Zealand land managers and sets it apart from… most adventure activities in New Zealand. “

  She said the owner has a duty and must ask “can I make sure that the workplace, anything that results from the workplace, and the means of entry and exit from the workplace, are free of risk to the health and safety of anyone? Work can be done. do you get out safely on the land I manage?”

  The hearing continues Thursday.