Background
Whakaari is an active volcano owned by a trust and leased to WML, which is owned and directed by the Buttle family. Between 2008 and 2019, WML granted licences permitting commercial tour operators to conduct guided walks on the Whakaari crater floor. On 9 December 2019, Whakaari erupted while 47 people were on the island, resulting in 22 people losing their lives and the remaining 25 being seriously injured.
District Court decision
After the eruption, WorkSafe New Zealand (WorkSafe) brought charges under the HSWA against WML, those companies that operated guided walking tours on Whakaari, and other parties. Judge Thomas found WML guilty of an offence under section 48 of the HSWA for failing to comply with its duties under section 37.1
The District Court determined that WML was a PCBU who managed or controlled a workplace meaning that, in accordance with section 37 of the HSWA, WML was required to ensure, so far as is reasonably practicable, that the workplace (in this case Whakaari itself) was without risks to health and safety. The District Court considered that WML had a duty under section 37 because it:
- was “not merely a passive landowner” and was “proactive in setting conditions around access to Whakaari”;2
- could terminate – or threaten to terminate its licence agreements with any breach; and
- provided the recreational activity of exposure to the island itself, which was “both the hazard and the thrill”.3
The District Court then considered that WML had breached its section 37 duty because it had failed to conduct its own risk assessment and, having failed to properly assess the risk, it had not taken a variety of steps. Those steps included monitoring and reviewing hazards and ensuring that there was an adequate means of evacuation from Whakaari.
WML was fined NZ$1,045,000 and ordered to pay NZ$4,880,000 in reparation to the victims.4
Conviction overturned
WML appealed against its conviction, arguing that it did not actively manage or control Whakaari as a workplace and therefore section 37 of the HSWA did not apply to it. In the decision released late last week, Justice Moore agreed, quashing WML’s conviction.5
The High Court addressed three key questions:
- Did WML owe a duty under section 37?
- If WML did owe a duty under section 37, did it breach that duty?
- Would compliance with that duty have prevented the risks of death or serious injury?
While the decision is necessarily focused on WML’s position, in answering each of these questions, the Court provided helpful guidance on the application of section 37 generally.
Did WML owe a duty under section 37?
The High Court concluded that WML did not owe a duty under section 37.
What does it mean to be a PCBU who manages or controls a workplace?
In addressing the question of what it means to be a PCBU who manages or controls a workplace, Justice Moore considered the legislative history of the HSWA. He noted that the legislative history made it clear that the issue for determining whether a PCBU owed the duty contained in section 37 was whether a PCBU has “active” management or control, rather than a “mere ability” to control a workplace.6 Justice Moore stated that it was also clear from the legislative history that the duty applies to workplaces that are not a PCBU’s own. The Judge considered that an assessment of a PCBU’s ability to take active control was a useful touchstone, and stated that simply focusing on whether a PCBU is actually “actively” managing or controlling a workplace, rather than having the ability to do so, could enable a PCBU to avoid having a duty under section 37 by electing not to exercise any control.
The Court then considered what it means to “manage or control” a workplace. In doing so, Justice Moore stated that a cautious approach was required to avoid an interpretation that was either under or over inclusive. In taking this approach, the Judge expressly noted that this issue of interpretation was “com[ing] to the fore on remarkable facts: the licencing of an active volcano to third parties that, in turn, brought people to the Island.”7 He also considered that caution was required because: “I have not heard argument on how any such interpretation might apply to commercial landlords and others who not only own land, but buildings, upon which the workplaces of others are situated. And because of this, I have not explored for myself what Parliament intended in this respect either.”8
Justice Moore then stated that the inquiry must be whether the PCBU has the power or capacity to actively control or manage the particular workplace in a practical sense. This inquiry required consideration of what the workplace actually was, and the extent to which the PCBU’s own business or undertaking involved (whether in whole or in part) the active management or control of that workplace in a practical sense. He then stated that three things needed to be considered, noting that they may be answered simultaneously:
- What is the workplace for which the PCBU is alleged to owe a duty under section 37?
- What would it mean for a PCBU to have the power to actively manage or control that particular workplace?
- Did the PCBU in fact have the power to actively manage or control that particular workplace (whether in whole or in part) as part of its own business or undertaking?
The Court confirmed that consideration of what it meant to “manage or control” a workplace would depend on what the workplace actually was (in this case, bare land), and that the inherent dangerousness or riskiness of the workplace (i.e. the hazard it represents) should not dictate the analysis.
Granting access: passive involvement vs. active control
The Court then applied this analysis to WML. The Court concluded that WML’s role was limited to granting access to Whakaari for tours, and that there was nothing for WML to manage or control at the workplace. The workplace in this case was where the walking tour operators were permitted to conduct tours, going from the wharf/landing zones to the crater lake, and aside from a container managed by the tour operators, there was nothing at this workplace for WML to manage.
The Court noted that the situation may be different where there is something on the land which a PCBU might realistically manage or control. For example, where a PCBU owned a building that it leased, it might have a duty under section 37 to ensure that the building was structurally sound for the workplace of its tenants. However, the Court was careful to note that it was not deciding this point as it was not an issue in the case, nor the subject of argument before the Court.
Other aspects of active control
The Court also considered whether WML’s licence agreements, post-access conduct, or receipt of fees amounted to active control under section 37.
WorkSafe argued that WML’s inclusion of safety obligations in its licence agreements demonstrated active management or control. The Court disagreed, finding that WML’s authority was reactive and limited to a termination right rather than indicative of day-to-day safety oversight. Moreover, the Court cautioned that WML imposing safety conditions on licensees should not, by itself, trigger liability under section 37. Such an approach would be antithetical to the HSWA’s purposes and create “perverse incentives” if being responsible led to liability while being irresponsible avoided it.9
The Court also considered WML’s conduct after granting access, such as correspondence with operators, infrastructure approvals, and user group participation. While these actions showed that WML carried out its role as an interested and engaged landowner, this was not active management or control of the walking tour workplace or the island itself. Rather, it was the tour operators and other users of the island (such as GNS Science, Te Pū Ao (GNS), the lead Government agency for monitoring volcanoes) who took the leading role.
If WML owed a duty under section 37, did it breach that duty?
Although the Court concluded that WML had no duty under section 37, it nevertheless went on to consider whether WML would have breached that duty if one had existed, noting that this was the subject of much argument before the Court and would no doubt be relevant to any appeal.
WorkSafe argued that WML needed to understand the “risks of its business” and that it should have engaged suitably qualified experts to assist with a risk assessment, given that it had oversight across the “total” or “societal” risk posed by Whakaari and those visiting it.10
The High Court rejected this argument, finding that it was not reasonably practicable for WML to conduct its own risk assessment given the nature of its business. WML’s business was being a landowner permitting commercial walking tour operators to undertake walking tours, subject to licence agreements and in consideration for an annual licence fee and commission per tourist. The Court stated that those other parties were “more specialised and capable of understanding the risks of the activity”.11
The Court agreed with the submissions of the intervener, Aotearoa Climbing Access Trust, that where someone knowingly signs up to an activity involving inherent but foreseeable natural hazards, the risks should be seen as arising from the work activity, rather than the workplace. The Court considered that this view was consistent with WorkSafe’s Landowner Guidance issued in May 2019 which addressed the obligations of a landowner who charged for recreational access. This was also consistent with public policy which supported imposing the duty on the PCBU who provides the activity, as they are likely to be best qualified to make risk assessments and have the means to manage such risks.
The Court considered that the requirements imposed by WML in the licences with the tour operations were responsible and consistent with WML’s obligation to ensure walking tour operators were properly appraised of the risks: “As a landowner who was merely permitting others to undertake their own activities on their land for a fee, it is difficult to see what more could reasonably have been expected of WML.”12
Finally, the Court considered that WML was entitled to rely on government agencies and the indications from all key government stakeholders that tour operators could continue following an earlier eruption on Whakaari in 2016.
Would compliance with its duty have prevented risks of death or serious injury?
Finally, the Court considered whether any failure by WML to comply with section 37 would have prevented the risk of death or serious injury if, hypothetically, WML did owe such a duty. The Court found that taking additional steps, such as seeking specific risk assessment information from GNS, could have reduced the danger tourists faced. For instance, if WML had known of escalating risks in the lead-up to the December 2019 eruption, it might have suspended tours.
The Court concluded that, if WML had breached a duty under section 37, it could have exposed individuals to a risk of death, serious injury, or illness. Accordingly, if the Court had not already ruled in WML’s favour on the earlier issues, it would not have granted the appeal on this final point.
Applying the decision to other “management or control” situations
The Court emphasised that its decision did not consider the application of the section 37 “management or control of a workplace” duty in other situations, such as those relating to landlords and tenants. Notwithstanding this, the decision provides useful guidance by outlining the questions to be asked by a PCBU to determine whether a section 37 duty applies to it, and if so, what that duty requires in practice.
When determining whether a PCBU owes a duty under section 37 and, if so, what that duty requires in practice, organisations should apply the following questions to their particular circumstances:
- What is the particular workplace in question?
- What would it mean for a PCBU to have the power to actively manage or control that particular workplace?
- Does the PCBU have the power to actively manage or control that workplace as part of its own business or undertaking?
- If so, has the PCBU taken appropriate steps given both the nature of the workplace and its own business or undertaking?
As can be seen from this decision, the answers to these questions will very much depend on the facts - and the facts in this particular decision were remarkable and unique - with the Court noting that while it was necessarily focused on the question of WML’s criminal liability, it was impossible not to be deeply moved and affected by the sheer scale and nature of the human loss in this case.
Whether WorkSafe will appeal against the decision remains to be seen and we will provide further updates if that is the case.
If you have any questions about this article, please get in touch with the contacts listed or your usual Bell Gully adviser.
Note: Bell Gully was the instructing solicitor for the intervening party, Aotearoa Climbing Access Trust.
[1] WorkSafe New Zealand v Whakaari Management Ltd [2023] NZDC 23224. WML was the only party which was found guilty after a full hearing. Several other parties either pleaded guilty or had their charges dismissed.[2] At [43] – [44].[3] At [50].[4] WorkSafe New Zealand v Whakaari Management Ltd [2024] NZDC 4119.[5] Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288.[6] At [160].[7] At [189].[8] At [189].[9] At [226].[10] At [244].[11] At [263].[12] At [278] and [279].