Simpson Grierson - Whakaari Management Ltd wins appeal - High Court quashes health and safety conviction

3/03/2025·4 mins to read

Whakaari Management Ltd wins appeal - High Court quashes health and safety conviction

The High Court (Court) has ruled that Whakaari Management Ltd (WML) did not have a duty under section 37 of the Health and Safety at Work Act 2015 to ensure the safety of the walking tour workplace on Whakaari / White Island. As a result, WML’s conviction in the District Court for a breach of section 37 has been quashed. This decision significantly clarifies the health and safety obligations of landowners who allow third parties to access their land for commercial activities.

Key takeaways

The Court confirmed that simply owning or leasing land does not automatically make landowners responsible for health and safety of a workplace under section 37.
Section 37 applies to those landowners who have active, practical control over the workplace’s physical conditions.
Being a responsible, engaged landowner (eg, staying informed and cooperating with agencies) does not create a section 37 duty if the landowner does not actively control operations.

Background

Whakaari Island is an active volcano located just under 50 kilometres off the coast of the North Island. WML (owned by a trust on behalf of the Buttle family) holds the lease to Whakaari. WML earned a passive income by granting licences to tour operators, allowing them to operate guided walking tours on the island’s volcanic crater floor.

One of Aotearoa’s most tragic days occurred when Whakaari erupted in December 2019, 47 people were on the island - 22 people died and 25 suffered serious injuries. WorkSafe prosecuted WML, arguing that as the party granting access to the site, WML had a duty to ensure the island was safe for visitors and tour guides.

WorkSafe charged WML with two offences under HSWA, including section 37 which places a duty on a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person.

In 2023, the District Court convicted WML under section 37 of the Health and Safety at Work Act (HSWA), finding that WML managed or controlled the walking tour workplace, triggering the duties set out in section 37. WML was fined over $1 million and ordered to pay nearly $5 million in reparations, to the victims and their families.

The Appeal - What the High Court decided

WML’s grounds of appeal were that there was no distinction between the work that was being undertaken on Whakaari and the workplace - there was nothing on the walking tour workplace to be controlled or managed other than the work itself. It argued, given WML had no influence or control over the tour operators’ activities / operations there could be no applicable section 37 duty.

The Court held that WML had no duty under section 37 because it did not actively manage or control the walking tour workplace. The Court extensively considered the appropriate definition of ‘manage or control’ in the content of a “workplace”, noting the management or control of what is happening at a workplace (that is, the “work”) is the province of s 36 (the ‘primary duty of care’).

The Court found that the deciding factor for a PCBU’s liability to be established under section 37 was “one of whether the PCBU has the power or capacity to actively control or manage the particular workplace in a practical sense”.^[1]

To determine whether a PCBU does actually manage or control a workplace in a practical sense the Court considered the following three factors:

what is the workplace for which a PCBU is alleged to owe a duty under s 37?
what would it mean for it to have the power to actively manage or control that workplace?
did a PCBU in fact have that power - in whole or in part - as part of its own business or undertaking?

The Court found it significant that the workplace in question was bare land. This left WML in a position where it had nothing to exert its control over - except who was allowed on the land (at which point the tour operators became responsible). While WML controlled who could access the island through its licensing agreements, it never tangibly controlled any of the operations on Whakaari nor did it own or maintain any buildings or plant on the island. WML’s ownership and licencing of the bare land was not enough to make it legally responsible for the health and safety of everyone visiting the island. The Court determined that the “inquiry should thus be on whether the PCBU has active management or control of the workplace after it grants access to its land for that other PCBU’s workplace to be created”.^[2]

Simply put Justice Moore drew a critical distinction between granting access to land, the “work” to be performed and actively managing or controlling what happens at a workplace (on that land).

What this means for landowners and businesses

Passive landowners (who merely lease or licence land) will have limited health and safety exposure - although a landowner can still owe a primary duty of care related to the “work”.
Active landowners (who direct or influence day-to-day work on site) will still have duties under HSWA.
Clear licence agreements should define who controls safety at the site.
High-risk locations, like adventure tourism sites, still require close attention - but risk alone does not create legal control for the purposes of section 37.

Conclusion

This case offers clarity for landowners, property managers, and leasing businesses. The duty to manage health and safety at a workplace does not automatically attach to the landowner, even where the land itself presents inherent risks. The party actively managing or controlling the work in the workplace itself is going to be responsible under section 37.

It does, however, also pose the question - can PCBUs, in effect, contract out of duties through well drafted licenses? This decision has put us in a position where a PCBU, which exists to make money out of its land, through granting licenses to inherently dangerous locations, will not attract any health and safety duties. This would appear to be contrary to public policy and Parliamentary purpose of the HSWA. Although we note that the charge under s 36 against WML was dismissed by the District Court and not appealed by WorkSafe. Given the public interest in this decision, we await with interest as to whether WorkSafe will appeal this decision and also eagerly await the higher Courts consideration of liability under s 36 in equivalent situations.