Whakaari/White Island trial comes to an end

Published 12 December 2023 | 2 min read

Health and safety management and mitigating risks

In the wake of the tragic Whakaari/White Island eruption, the legal aftermath has unfolded, shedding light on critical aspects of health and safety responsibilities. WorkSafe New Zealand brought charges against 13 parties, seeking accountability for the devastating event that claimed 22 lives in December 2019. The trial, which commenced on 11 July 2023, concluded on 21 September 2023, marking a pivotal moment in understanding the obligations under the Health and Safety at Work Act 2015 (HSWA).

The trial showcased the complexities surrounding health and safety duties, particularly for Whakaari Management Limited (WML). With charges dismissed for some and guilty pleas from others, the spotlight turned to WML, emphasizing the need for a comprehensive understanding of the practical management and control of a workplace.

Court's decision

The court's decision on 31 October 2023 found WML guilty under section 37(1) of the HSWA, highlighting the importance of active control and management in meeting health and safety obligations. The nuanced exploration of duty under section 36(2) added intrigue, unraveling the intricacies of obligations to workers and the public.

While the trial concluded with a conviction for WML, it illuminated critical failures in risk management and safety protocols. The court emphasized the non-transferable nature of health and safety duties, discouraging reliance on external assessments and reinforcing the need for continual re-evaluation and verification.

Health and safety responsibilities

The Whakaari decisions provide essential guidance for New Zealand businesses regarding their duties under sections 36(2) and 37(1) of the HSWA. For a PCBU (Person Conducting a Business or Undertaking ) to fulfill its duty under section 37(1), active control and management of the workplace are imperative. The court's scrutiny of WML's reliance on external assessments underscores the need for robust, context-specific risk assessments and the continual updating of safety information.

In terms of section 36(2), the court's interpretation emphasizes the interconnectedness of duties under section 36(1). The duty to "other persons" hinges on existing duties to workers, reinforcing the importance of a holistic approach to health and safety within a workplace.

Key takeaways

The Whakaari trial underlines the significance of proactive health and safety management. PCBUs must not only meet the minimum requirements but actively assess and mitigate risks. Context remains a crucial factor, and businesses should avoid complacency, recognizing that circumstances may warrant an extension of duties.

As we reflect on the trial's conclusion, New Zealand businesses, especially small-to-medium enterprises, must internalize these lessons. Clear understanding and implementation of health and safety obligations are paramount, ensuring the well-being of workers and the public in the unique landscapes of Aotearoa.