Landowners who provide access to land for recreational activities should pay close attention to the decision of the District Court this week to convict Whakaari Management Limited (WML). WML was convicted as a person conducting a business or undertaking (PCBU) who managed and controlled a workplace - in this case, Whakaari - for failing in its duty to reasonably ensure that entry to, exit from, and anything arising from the island itself, were without risks to people’s health and safety.

The judgment has wide-reaching implications for landowners who grant access to a workplace for recreational activities. In this article we discuss important aspects of the decision and what it means for businesses and landowners that allow access to their property for recreational use from a health and safety risk management perspective.

Background

WML leased Whakaari from the island’s owner, Whakaari Trustees Limited, and had a duty to safely manage the island. In turn, WML entered into licence agreements with various commercial tour operators, enabling those tour operators to access the island for the purpose of conducting walking tours, including across the crater floor of the volcano.

Following the Whakaari/White Island disaster in 2019, WorkSafe laid two charges against WML under the Health and Safety at Work Act 2015 (Act) on the basis that WML:

• was a PCBU that manages and controls a workplace, namely Whakaari, has a duty to ensure - so far as is reasonably practicable - that entering, exiting and anything arising from the island does not pose risks to people’s health and safety under section 37(1) of the Act; and
• had failed to ensure that health and safety of tourists and tour operators to Whakaari was not put at risk from work that WML carried out, as part of its business (s 36(2) under the Act).
• In each charge, WorkSafe alleged that failure to comply with the Act exposed visitors to the island to the risk of death or serious injury arising from volcanic activity.

Active manage or control of workplace required to engage the section 37(1) duty

WML’s position was that, while it had the rights of a landowner, it did not manage or control Whakaari “enough” to engage the duty under section 37(1) of the Act. The Court disagreed with WML. In reaching this conclusion, the court focused on the fact WML’s business was to generate income by enabling walking tours on Whakaari, it entered into licence agreements for the purpose, which it could terminate and it maintained direct and continuing relationships with the tour operators.

Whether or not a PCBU manages or controls a workplace was accepted to be a factual assessment that depended upon the circumstances. In finding that WML “was not merely a passive landowner” and therefore had a duty, so far as is reasonably practicable, to minimise risks arising from Whakaari, the Court focused on the fact WML’s business was to generate income by enabling walking tours on Whakaari; that was its only business.

In effect, without WML, there would not have been tours. WML had the ability to control access to Whakaari, with the Court noting every landowner can control access to their land. Looking at risk, it was accepted that the tours to Whakaari were adventure tourism, and that risk is a common element of these operations. Further, context is important where there is a high public interest in protecting workers and customers and a high public interest in fostering and enabling the industry in a safe way. 

Duty to understand risk and take reasonably practicable steps 

WML argued conducting walking tours on Whakaari was the work of the tour operators, and that its involvement was only ever to permit access to tour operators. However, the Court found this was too simplistic, that the active volcano was the product on offer and exposure to it was the recreational activity. It was “both the hazard and the thrill” and “WML’s business was to provide that”.

There was no risk assessment completed by WML as to the risks arising from the conduct of commercial tours on its active volcano. It was clear that taking tourists to Whakaari would expose them to the risk of an eruption, and the evidence was that eruptions cannot be predicted (which seems obvious). The Court held it was therefore fundamental that WML engaged necessary expertise to assess risk on its active volcano and that a risk assessment was critical to ensure tours could be safely conducted, and while this was expert evidence, it was also “common sense”.

WML also needed to continue monitoring risks for what it knew to be the varying and unpredictable nature of Whakaari. WML did not do that, even though it was a reasonably practicable step for it to take.

Was the risk assessment someone else’s role? 

WML argued that it had an existing relationship with GNS (a Crown Research Institute which, among other things, monitors volcanic activity in New Zealand) and received information from GNS about Whakaari/ White Island. In doing so, WML argued that it could rely on the information provided by GNS and that it was not reasonably practicable for it to conduct a further risk assessment. 

Again, the Court disagreed finding that if a PCBU has a duty under the Act, that duty remains with the PCBU and cannot be transferred. This meant the information GNS provided to WML did not relieve WML of its obligation to conduct a risk assessment because:

• the risk of WML’s work was fundamentally different from that of GNS. GNS assessed the risk to its own workers and did not assess the risk for tour operators, or the societal risk of multiple tours being conducted on Whakaari;
• WML could not rely upon information from GNS without understanding the qualitative information its risk assessments were based on;
• the interaction between WML and GNS was insufficient to amount to WML taking expert advice; and
• the information WML received from GNS did not amount to a risk assessment.

Decision

The Court found WorkSafe had proven the first charge under s37(1) of the Act, but dismissed the charge brought under section 36(2). The reason being that WML could not owe a duty to the tourists and tour operators to Whakaari because it did not influence or direct tour operator activities in carrying out their work.

WML (subject to the potential for an appeal) will now be sentenced. The relevant offence under the Act carries a maximum fine of $1.5 million.

Get in touch

If you would like assistance with understanding or managing your workplace duties under HSWA, please contact one of our health and safety experts below.