Landowners - no longer liable for health and safety failings?
A perspective on Whakaari Management Limited v WorkSafe New Zealand [2025] NZHC 288
The High Court’s decision to quash Whakaari Management Limited’s (WML) conviction arising out of the fatal Whakaari / White Island (Whakaari) eruption limits the scope for landowners to be liable for health and safety at workplaces.
WML owned Whakaari and had license agreements with tour operators who brought tourists to Whakaari to experience the volcano. On 9 December 2019, Whakaari erupted while there were 42 tourists and five tour operators on the island, resulting in 22 deaths and significant injuries.
WorkSafe New Zealand (WorkSafe) charged 13 defendants, including WML. Six defendants pleaded guilty and six others had their charges dismissed. WML was the only party to be found guilty by the District Court under s 37 of the Health and Safety at Work Act 2015 (the HSWA). That section requires a Person Conducting a Business or Undertaking (PCBU) which manages or controls a workplace to ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting it, and anything arising from it, are without risks to the health and safety of any person.
WML appealed. In “a case where reasonable minds have differed”, Moore J disagreed with the lower court’s finding that WML, as landowner, “managed” or “controlled” the workplace at Whakaari and had a duty under s 37. His Honour made other findings relating to whether any hypothetical duty was breached and if so, whether any breach exposed persons to the risk of serious harm. While of interest, these further findings are not explored in this article.
Moore J approached the issue of whether a duty is owed under s 37 using three questions: first, what is the workplace; second, what would it mean for the PCBU to have the power to actively manage or control that workplace, and thirdly, did the PCBU in fact have that power on the facts of the case?
As to the first question, Moore J determined that the workplace at Whakaari “was where the walking tour operators were permitted to conduct tours, going ultimately from the wharf or helicopter landing zones to the crater lake and back.”
Turning to the second question, Moore J held that the inherent risks of a workplace did not dictate whether the PCBU had management or control of the workplace. What it means to manage or control a workplace depends on what the workplace actually is – “for example, what it means to manage or control a building will be different to what it means to manage or control – as here – bare land”. His Honour agreed with the lower court that owning a workplace, making money from it, and “merely being able to manage or control a workplace, but not doing so” are not enough to say that the PCBU “manages” or “controls” the workplace.
His Honour found that a PCBU’s control over grant of access to a workplace was also not enough to say that it “managed” or “controlled” the workplace. There must be something on the land which a PCBU might realistically manage or control. For example, it was “reasonable to suppose that if a PCBU owns a building that it leases, it might have a duty under s 37 to ensure that the building is structurally sound for the workplaces of its tenants.”
Moore J answered the third question by holding that WML did not have the power to actively control or manage the workplace at Whakaari and therefore did not have a duty under s 37. This was because besides controlling access to the Island, there was nothing for WML to manage or control on the Island, apart from the work itself. And there was nothing in the license agreements with operators which gave WML the ability to direct and control what was happening at the workplace day to day. The ability to threaten to terminate or terminate the license agreement depended on the licensee committing a material breach of their agreements. WML could not say to tour operators “don’t go” without reason on any day. The fact that WML made money from charging access to its land did not mean it had management or control of the workplace. It did not have active management or control in a practical sense of the walking tour workplace.
Despite Moore J’s express intention of not interpreting s 37 in a way that is “under or over inclusive”, the decision arguably narrows the application of s 37 beyond its plain language. Whereas s 37 relates to PCBUs which control or manage “a workplace”, His Honour’s reasoning focusses on whether there was anything on the workplace (apart from access) that WML could control.
His Honour was careful to confine the judgment to its facts. But Landowners and commercial landlords will undoubtedly read the decision with interest. If a landowner’s control over access is not enough to result in control or management of a workplace, then it seems difficult to envisage scenarios where an owner of bare land will have a duty under s 37. By contrast, His Honour’s observation that a building owner might have a duty to assess structural soundness indicates a view that building owners do “control” or “manage” the workplace. We expect any future judgments relating to s 37 to place weight on these observations.
Article written by Aish Bagchi and Ben Finn.
For help with Health and Safety regulation please contact; Ben Finn, Stephanie Bishop or Tim Bain.