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At 2:11pm on 9 December 2019 an eruption occurred at Whakaari / White Island. At the time of the eruption there were forty-seven people on the island. Twenty-two people died as a result of this event, including after being rescued, and a large number of people were seriously harmed.

This page provides a summary of the different stages of WorkSafe’s involvement following the eruption.

The outcome – who was held accountable

Ten businesses or organisations were charged by WorkSafe with seven convicted for failing to meet their duties. This includes the business with management and control of the island, Whakaari Management Limited and five commercial tour providers as well as a Crown Research Institute.

Charges were dismissed against one Government entity whose role related to emergency management and advising the public, and two businesses involved in facilitating tours to the island. Three directors of the PCBU which managed the island also had charges against them as individuals dismissed.

Sentencing for all guilty parties is scheduled to begin on 26 February 2024 and is expected to take up to two weeks.

View information of public interest issued by the court(external link)

The investigation – what WorkSafe did

WorkSafe New Zealand has a duty to investigate workplace incidents to determine whether those with responsibilities met those responsibilities.

The eruption was a catalyst for WorkSafe to investigate the conduct of parties whose work related to and included activities on the island and if they had met their duties as required under the law.

WorkSafe acknowledges and remembers everyone who was impacted by the eruption. This includes the people who assisted following the eruption, such as those who assisted with the evacuation, emergency services, medical staff, and friends and communities of those harmed.

WorkSafe’s investigation involved dozens of investigators and support staff. Due to the complexity of investigations and number of businesses and organisations which needed to be looked into, WorkSafe often uses as much of the 12-month period allowed to it under the Health and Safety Act 2015 (HSWA) before charges can no longer be filed.

WorkSafe did not investigate the rescue and recovery of victims following the eruption or take any enforcement action in relation to events following the eruption.

On November 30 2020, WorkSafe announced it had laid charges against 13 parties for alleged failings identified during the Whakaari investigation.

WorkSafe’s actions

An independent review of WorkSafe focussing on its role in relation to Whakaari / White Island was carried out and a report finalised in September 2021, which included recommendations. Additionally, the Ministry of Business, Innovation and Employment carried out a targeted review of the adventure activities regulatory regime. WorkSafe also carried out work to ensure any lessons to be learned were, and improvements made.

The parties – who WorkSafe charged

Tour providers

WorkSafe charged boat and helicopter tour providers in relation to their failure to conduct adequate risk assessments and implement controls.

These businesses were not charged in relation to any involvement in rescue and recovery immediately after the eruption, and WorkSafe acknowledges the actions of employees of some of these businesses were heroic in this regard. 

This PCBU carried people to the island on boats and had four staff and 38 customers on the island at the time of the eruption.

White Island Tours Limited was charged under section 36(1)(a), 36(2), 48(1) and (48)(2)(c) of HSWA and pleaded guilty to both charges on 15 June 2023.

This PCBU carried people to the island by helicopter and had one pilot and four customers on the island at the time of the eruption.

Volcanic Air Safaris Limited was charged under section 36(1)(a), 36(2), 48(1) and 48(2)(c) of HSWA and pleaded guilty to both charges on 7 July 2023.

This PCBU carried people to the island by helicopter. Fortunately, none of its staff or customers were present on the island at the time of the eruption.

Aerius Limited was charged under section 36(1)(a), 36(2), 49(1) and 49(2)(c) HSWA and pleaded guilty to both charges on 7 July 2023.

This PCBU carried people to the island by helicopter. Fortunately, none of its staff or customers were present on the island at the time of the eruption.

Kahu NZ Limited was charged under section 36(1)(a), 36(2), 49(1) and 49(2)(c) and pleaded guilty to both charges on 7 July 2023.

This charter company was charged under section 36(2) and Section 48 of HSWA.

On 31 March 2022 Inflite Tours Limited pleaded guilty and was sentenced on the same day. A fine of $227,500 was imposed together with an order to pay prosecution costs of $40,000. 

Island ownership

WorkSafe charged the entity with control over the island, including access to it, and the directors of that entity. Whakaari Management Limited was charged as it held duties under HSWA as an entity that manages and controls the workplace.

The Buttles were charged in their capacity as directors, which have a separate responsibility relating to explicit legal duties to undertake due diligence to ensure their company’s compliance with its own health and safety obligations.

This entity was charged under sections 37, 36(2), 48(1) and 48(2)(c) of HSWA.

Whakaari Management Limited was found guilty at trial on the charge relating to the s37 HSWA duty and convicted on 31 October 2023.

The three officers of Whakaari Management Limited were charged under sections 44 and 48 of HSWA.

Three separate applications were made to have the charges against the Buttles dismissed under section 147 of the Criminal Procedure Act 2011 throughout the course of the proceedings.

Two of the applications were declined in the lead up to trial on 18 October 2022 and 30 May 2023 respectively.

On 31 August 2023, at the conclusion of WorkSafe’s case a third application was made to have charges dismissed. This was granted on 5 September because Judge Thomas considered there was not enough evidence on the basis of which he could reasonably convict the Buttles.

Other parties – duties to others

WorkSafe charged other parties relating to alleged health and safety failings prior to the eruption.

Several parties were charged in relation to a duty WorkSafe alleged they had to people other than their own workers under section 36(2) of HSWA. Due to a narrower interpretation by the court of the duty to others, these charges were dismissed.

In his judgment awarding costs to one such party, Judge Thomas acknowledged that, because it didn’t have a previous contrary decision from a court, WorkSafe was entitled to take the wider view of the scope of the duty to others which led it to charge NEMA, noting the high public interest in ensuring those with duties were held accountable.

“I must balance that the issues that I heard at the s 147 application had never been argued in New Zealand before. There were cases relied upon by WorkSafe that showed in New Zealand, plainly parties had contemplated a wider duty than I had found. Parties contemplated the existence of a wider duty along the lines that WorkSafe was arguing for. The point had never been properly argued in those cases because they usually involved a guilty plea, but that still created something of a basis for testing the scope of the duty.

[…] what is significant is that WorkSafe did not have an adverse ruling prior to this case. The position on the scope of the s 36(2) duty had not been settled in New Zealand prior to this case. WorkSafe had, and was entitled to take, a contrary view of what was a live issue. It was entitled to debate internally at WorkSafe whether NEMA would be caught or whether it would not be caught; whether NEMA should be charged or whether it should not be. There is a high public interest in ensuring those who might be liable were charged. There is a high public interest too in ensuring that prosecuting agencies do not become impotent because they fear a costs award.”

The National Emergency Management Agency had one charge dismissed on 29 April 2022, with the Court deciding that it did not owe a duty under section 36(2) HSWA to tour operators and tourists who travelled to Whakaari (the NEMA decision).

On 29 March 2023 the National Emergency Management Agency was awarded costs of $40,000 by the court.

This PCBU initially faced two charges, one relating to an alledged duty to the public under sections 36(2) and 48 of HSWA and one under s36(1)(a) and 48 relating to its duty to helicopter pilots who flew its scientists to the island.

Following the NEMA decision, the s36(2) charge was dismissed on 6 October 2022 by consent with WorkSafe.

GNS made an application to have the remaining charge heard separately from the main trial on 10 February 2023. This was declined on the same day.

On 30 May 2023 GNS pleaded guilty to an amended charge under s36(1)(a) and 49 of HSWA regarding a failure to ensure the health and safety of the helicopter pilots.

ID Tours brought a pre-trial application to dismiss the charge against it pursuant to section 147 of the Criminal Procedure Act 2011, relying on the court’s reasoning in the NEMA decision. That application was declined in a decision dated 14 March 2023.

A second application was brought following the conclusion of WorkSafe’s evidence at trial and the charge against ID Tours was dismissed in a decision dated 12 September 2023, with the Court ruling it did not owe a duty of care under to tourists and workers on the island.

This defendant brought an application, together with ID Tours, to dismiss the charge against it following the conclusion of WorkSafe’s evidence at trial. The charge was dismissed in a decision dated 12 September 2023, with the Court ruling it did not owe a duty of care to tourists and workers on the island.

Section 147 Criminal Procedure Act 2011

This section of legislation grants a judge the ability to dismiss a charge on their own motion or the motion of the prosecutor or defence.

Applications by defence under section 147 are, in essence, a request for the court to dismiss the case against them. This can be for a range of reasons including the defendant not being capable of liability as a matter of law, claims that the case is an abuse of process and should not be allowed to continue, and lack of evidence offered by the prosecution.

There were five applications to dismiss charges under section 147 which were considered before the trial began as well as an application from the Institute of Geological Nuclear Sciences Limited to have its charge heard separate from the main trial.

The trial – evidence and court applications

The trial began on 10 July 2023. Six defendants went to trial. These were:

  • Whakaari Management Limited
  • The directors of Whakaari Management Limited – Andrew, James and Peter Buttle
  • ID Tours New Zealand Limited
  • Tauranga Tourism Services Limited

At the opening of the trial WorkSafe, represented by Kristy McDonald KC, laid out its case against the above defendants.

For Whakaari Management Limited, the principal allegation related to a failure to ensure adequate risk assessments were carried out of the activity of conducting tours on Whakaari. It was also alleged that the company failed to consult with GNS, consult, co-ordinate and cooperate with the tour operators as to the hazards and risks, monitor and review the hazards when there was a change in the Volcanic Alert Level, ensure appropriate personal protective equipment was provided to workers and tourists and ensure there was an adequate means of evacuation from the island.

For the Buttles WorkSafe alleged a failure to exercise due diligence to ensure Whakaari Management Limited was adequately resourced to meet its obligations, specifically to obtain expert advice in relation to the risks posed by tours to Whakaari.

The allegation against the two business involved in facilitating tours to the island related to a failure to ensure health and safety information passed through the supply chain to tourists.

From 12-17 July the Court heard evidence from survivors of the eruption. This consisted of video and in-person evidence in court, as well as some which was submitted for the judge to review. In delivering his verdict, Judge Thomas remarked on the tenacity of those who had given this evidence.

“I pay special tribute to the survivors who gave evidence during this trial. Each was remarkable. Each showed great strength, insight, poise, and dignity. They were a powerful and respectful voice for all the victims. Their contribution to this trial was necessary for the legal analysis that follows. Their stories were confronting, poignant, and left a deep and enduring impression. I thank them for their strength and courage.”

WorkSafe shares this sentiment.

Following this, factual and expert evidence was heard from 19 July-10 August. The following people gave evidence:

  • GNS Principal Scientist Gillian Jolly
  • University of Bristol volcanology expert Emeritus Professor Sir Stephen Sparks
  • Massey University Professor of Natural Hazards and volcanology expert Dr Jon Proctor
  • White Island Tours General Manager Patrick O’Sullivan
  • Victoria University of Wellington occupational health and safety expert Chris Peace
  • Health and safety expert Richard Gibson
  • Former ID Tours employees Alex Howard and Bruno Lobo
  • Tourism and supply chain expert Dr Carolyn Deuchar

An application for Judicial Review of the decision to decline the Section 147 applications by the Buttle brothers was argued on 10 August 2023. Justice Anderson delivered her decision, declining the application, on 22 August 2023.

On 31 August a section 147 application was made on behalf of the three Buttle brothers to have their charges dismissed. This was granted on 5 September on the basis that Judge Thomas considered there was not enough evidence on the basis of which he could reasonably convict the Buttles.

On 6 September applications were made by ID Tours New Zealand Limited and Tauranga Tourism Services Limited to have their charges dismissed. On 12 September Judge Thomas dismissed charges against both parties, ruling that as they did not influence or direct the tour operators' workers, under HSWA they did not owe a duty of care to the tourists and workers on the island.

This meant Whakaari Management Limited was the sole defendant remaining in the trial.

Following a brief adjournment in proceedings, closing arguments by WorkSafe as the prosecution and Whakaari Management Limited began the week of 21 September.

On 31 October Judge Thomas delivered his decision finding Whakaari Management Limited guilty of the charge it under section 37 and 48 of HSWA. Judge Thomas found WorkSafe had proved that Whakaari Management had failed to take all the reasonably practicable actions identified in the charge, relating to risk assessment, working with other PCBUs, personal protective equipment, monitoring hazards and ensuring adequate means of evacuation.

WorkSafe had also laid an alternative charge under section 48 alleging a breach of a duty under section 36(2). A charge being laid in alternative means the company could only be convicted of one charge or the other, not both.

A pre-sentencing hearing was held on 13–14 December 2023 to discuss and determine some of the issues for the main sentencing hearing.

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