On 9 December 2019, White Island (or Whakaari in the Māori language), an active marine volcano off the coast of Whakatāne in the North Island of New Zealand, erupted. 47 people were present on the island. At the time, tourists frequently explored the active volcano on foot to get a close-up view of the steaming crater.
22 people died due to severe injuries suffered following the eruption. Another 25 people were harmed, many sustaining serious deep tissue burns.
The event led to a lengthy investigation by New Zealand’s workplace health and safety regulator, WorkSafe. On 30 November 2020, WorkSafe announced it had charged 13 parties with breaches of health and safety laws. This included three individuals (directors of the company that owns the island), two government agencies and eight other organisations. The prosecuted parties were involved in activities on the island in a range of ways, from providing scientific advice about volcanic activity to arranging guided tours.
While charging 13 different parties in relation to the same event is unusual, it is certainly permissible under New Zealand law. The legislation makes it clear that more than one party may have the same duty at the same time. Each party must retain responsibility for its duty in relation to the matter and must discharge the duty to the extent to which it can influence and control the matter.
WorkSafe has not yet provided full details of the charges filed or the names of those charged because some defendants may wish to apply for name suppression.
The most common category of party to be prosecuted for breaches of New Zealand’s health and safety laws is a ‘person conducting a business or undertaking’ (or ‘PCBU’). A PCBU can be an individual, a corporation, an unincorporated body or the Crown. It has an obligation to, so far as is reasonably practicable, ensure the health and safety of workers and other persons, including members of the public. If failure to comply with this duty exposes any individual to a risk of death or serious injury or serious illness, it can be convicted and fined up to NZD 1.5 million.
Officers of PCBUs are also required to ‘exercise due diligence’ to ensure the PCBU complies with its health and safety obligations. An officer can be a company director or a partner or a person who exercises significant influence over the management of the business or undertaking. Exercising due diligence includes taking reasonable steps to:
Any officer who does not meet this obligation can be liable to a conviction and a fine of up to NZD 300,000.
WorkSafe’s prosecution of 13 parties is a reminder to those owing obligations to workers and others that a high level of care needs to be taken in relation to workplace health and safety. It is not enough to rely on others managing risks competently in order to meet one’s own obligations. To avoid enforcement action, a proactive approach needs to be taken to the identification and management of risks arising in the workplace.