The legal landscape across the entire supply chain of adventure tourism is changing rapidly, with the sentencing on the White Island/Whakaari disaster cases wrapping up earlier this year and new regulations for adventure operators having come into force on 1 April 2024. Now is a good time to double check that all processes comply with the new regulations and to take stock of the outcome of the prosecutions.
The Whakaari prosecutions themselves were a mixed bag for WorkSafe, with a number of the defendants successfully defending the charges and the District Court taking a much narrower interpretation than WorkSafe had sought for a key liability provision of the Health and Safety at Work Act 2015 (HSWA).
The prosecutions
WorkSafe brought cases against the following entities:
|
Entity |
Role |
Result |
| Whakaari Management Ltd (WML) | Manager of the island on behalf of the landowner Whakaari Trustees Limited | Found guilty at trial on one charge (s 37), other charge dismissed (s 36(2)). WML has appealed its conviction, with the hearing in August 2024. |
| The directors of WML | Directors of management company | Charges dismissed (more information available here) |
| I D Tours Ltd and Tauranga Tourism Services Ltd | Booking agents | Charges dismissed |
| White Island Tours Ltd, Volcanic Air Safaris Ltd, Aerius Ltd, and Kahu (NZ) Ltd | Tour operators taking tourists to the island | Guilty pleas entered |
| Institute Geological Nuclear Sciences | Periodically sent workers to the island and hired helicopter pilots to take them | Guilty plea entered |
| Inflite Charters Ltd | Provided tours via sub-contractors | Guilty plea entered |
| National Emergency Management Agency | Provided hazard information | Charges dismissed (more information available here) |
Perhaps the most significant legal result from the prosecutions was the failure of all charges brought under s 36(2) alleging a breach of duty to "other persons" (ie not workers), except for the tour operators who directly brought tourists to the island, all of whom pleaded guilty. What does this tell us about the scope of this duty?
Duty to other persons
Section 36(2) states that a PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
In the case against NEMA, WorkSafe alleged that NEMA had a duty to consult with GNS and Whakaari management about the implications of volcanic activity and to communicate the risk to the public.
The District Court held that s 36(2) did not create a general duty to the public or to the tourist operators to warn of risks. Instead, s 36(2) is targeted at dangers arising from work activities themselves, and does not extend to the consequences of work product (such as evaluations of risk).
The District Court applied this reasoning in its subsequent decisions. The booking agents did not owe a duty to the tourists. The Judge found that the duty to "other persons" only arose where there was a duty to "workers" under s 36(1). As the booking agents had no workers on the island and had no control over the work, they could have no duty to other persons. WML, who licensed and controlled access to the island, was also not found to owe a duty under s 36(2).
In short then, the Whakaari decisions seem to require a direct connection between the physical activity of the work undertaken by the relevant PCBU and the harm. That is a much narrower duty than WorkSafe argued for. This interpretation is not formally binding on other judges, but provides the fullest analysis of the duty to date.
New regulations
Following the Whakaari Island disaster, amendments to the Health and Safety at Work (Adventure Activities) Regulations 2016 were passed on 7 August 2023 and came into force on 1 April 2024.
Among other matters, the new regulations state that the adventure operator must take all reasonable steps to inform people of any "serious risks". The duty lies with operators, not with booking agents, and so mirrors the findings of the District Court, despite being drafted before the charges against I D Tours and Tauranga Tourism were dismissed in September 2023. It would therefore not seem to change the legal position of booking agents.
WorkSafe's current guidance is that tour operators must ensure that tourists are informed of the risks before they commit to taking part (ie before they buy the ticket and/or start the activity). Information must be sufficient to allow an informed choice and must be understandable to the target audience. This suggests that operators should not rely on dense fine print or on links that customers are unlikely to click on. Customers must also be provided with up-to-date information "as necessary", which would cover changes to risks (such as weather conditions).
WorkSafe has further stated that operators must make arrangements to ensure that these obligations are met, even where third parties, such as booking operators, promote or sell the activities on their behalf, including by checking compliance. WorkSafe will see a failure to do so as a breach of the regulations (punishable with a fine), and it would also be a key plank in any prosecution for a breach of the safety duties under HSWA itself.
Implications for adventure operators
While the duties found by the court and imposed via the regulations focus on the operator, practically they will need the help of their booking agents to comply with this duty. Whether that directly imposes a legal duty on booking agents is doubtful, but adventure operators will increasingly wish to ensure that compliance is a contractual obligation and one that they can monitor.
There are other important obligations in the regulations, including duties to notify WorkSafe of unusual risks and other events that are not notifiable incidents under HSWA. Adventure operators should make sure that their processes and promotional materials comply with the regulations.
Please feel free to get in touch with a member of the team if you would like to discuss anything raised in this article.