Lessons for regulators from the Whakaari - White Island Disaster

On 9 December 2019, Whakaari/White Island erupted with 47 people on the island.

A subsequent investigation by WorkSafe New Zealand resulted in multiple entities being charged with breaches of the Health and Safety at Work Act 2015 (HSWA), including the owners of the island, multiple tour operator companies, as well as government agencies.

Andrew, Peter and James Buttle are the three directors of Whakaari Management Limited (WML), which managed access to Whakaari. WML entered into licence agreements with tour operators. The Buttles were charged pursuant to section 44 of HSWA in that they allegedly failed to exercise the necessary due diligence as officers of WML to ensure that it compiled with its obligations under HSWA.

The Buttles made a total of three applications to dismiss the charges against them. In addition, they applied for judicial review of one of the decisions to decline the dismissal. The third and final application to dismiss the charges was successful in September 2023.

First application to dismiss the charges

On 6 October 2022, in the District Court, the Buttles unsuccessfully applied to dismiss the charges against them. The Buttles argued that the charging documents were defective because they did not contain enough information to fully and fairly inform them of the substance of the charges. In dismissing the application, the Court found that the charging documents were not defective.

The Court noted that WorkSafe had “nailed its colours to the mast” when it confirmed during the hearing that its case was that the Buttles took no steps to exercise their due diligence.

Second application to dismiss the charges

On 30 May 2023, in the District Court, the Buttles applied again to dismiss the charges against them.

WorkSafe argued that it did not intend to convey the impression in the first application that its case was that the Buttles took no steps to exercise due diligence. WorkSafe argued that its position was that the Buttles, while taking some steps, did not take enough steps to constitute due diligence.

The Court found that allowing WorkSafe’s case to go ahead in this way would require ignoring Parliament’s intention in setting the 12-month limitation period for the filing of charging documents under HSWA.  The Court dismissed all, but one of the particulars, alleged against the Buttles.

The only remaining particular alleged that the Buttles failed to obtain expert advice on how WML could ensure that guided tours at Whakaari were conducted safely. The Court considered that this particular fully informed the Buttles of everything they needed to know about that allegation.

Judicial review

During the trial in the Auckland District Court, the Buttles applied to the High Court to judicially review this second decision. They argued that the District Court was wrong not to dismiss all the charges against them. The High Court found that the high standard for judicial review was not met. The Buttles also sought a stay alleging an abuse of process, based on the manner in which the charges were filed, and the ultimate case that WorkSafe pursued against them. This ground was also unsuccessful.

Third application to dismiss the charges

After WorkSafe closed its case, the Buttles made their third and final attempt to have the charges dismissed. The Buttles argued that WorkSafe’s evidence was insufficient to establish a case to answer. This time, the District Court agreed. It considered that there was no evidence of what occurred between the directors behind the scenes at WML. While internal decision-making documents, such as board minutes, had been sought from some of the other defendants, this information was not requested from WML. Accordingly, there was insufficient evidence for the District Court to assess what a reasonable officer would have done. The charges against the Buttles were dismissed.

Interestingly, the Court noted that if WML had only had a single director, it would have been a simple exercise to connect any failures of the company back to that director. However, as there were three directors in this case, the Court considered that it did not have enough evidence to consider each director’s culpability separately.

The dismissal of the charges demonstrates the need for regulators to:

• Collect sufficient internal decision-making documents in cases where it is considering the prosecution of an officer; and

• Ensure that evidence is sufficient to prove the case against each officer individually (in a case where multiple officers are potentially liable).

Article written by Lauren Eastlake and Farzana Nizam.

For help with Health and Safety regulation please contact; Ben Finn, Stephanie Bishop or Tim Bain.

For Judicial Review Richard May and/or Stephanie Bishop can assist.