Last month, the High Court overturned the conviction of Whakaari Management Limited (WML). The decision, Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288, clarifies the health and safety obligations of landowners who grant access to their land. The appeal arose from the WorkSafe prosecution of several parties, including WML and its directors, following the eruption of Whakaari White Island on 9 December 2019. Counsel for the successful appellants were senior counsel Rachael Reed KC of City Chambers, Bankside Barrister James Cairney, and Bankside Employed Barrister, Paige Brash.
Background
Whakaari White Island, an active volcano, is owned by a family trust and leased to WML. WML granted access to the volcano to tour operators for the purpose of conducting walking tours. WML was not involved in day-to-day operations of those tours on the island – it was effectively in the position of a landowner.
On 9 December 2019, Whakaari White Island erupted. There were 47 people on the island at the time. Tragically, 22 people were killed and 25 people were injured.
After the eruption, WorkSafe New Zealand charged 13 parties, including WML and its directors, tour companies, supply chain operators, and government agencies, for breaches of the Health and Safety at Work Act 2015 (HSWA).
WML was charged under s 48 HSWA for failing to comply with a duty as a person who manages or controls a workplace under s 37 HSWA, (and alternatively, failing to comply with a duty to ensure the health and safety of other persons is not put at risk as a result of its work under s 36(2) HSWA).
Six parties pleaded guilty before trial. Six others, including WML’s directors, had their charges dismissed. WML was the only party found guilty at trial. His Honour Judge Thomas convicted WML of breaching a duty under s 37 HSWA. He dismissed the s 36(2) charge at trial.
High Court appeal
WML successfully appealed its conviction under s 37 HSWA.
Moore J found that:
- WML did not have the alleged s 37 HSWA duty; and
- Even if WML had a s 37 duty, he would not have found any breach of that duty.
In considering whether a party has a duty under s 37, His Honour agreed with WML and found that a party will only have a duty if they are actively managing or controlling the workplace. Ownership alone does not trigger the duty, nor does granting access under commercial licences in and of itself trigger the duty.
Moore J further found that even if WML had a s 37 duty, he would not have found a breach of the duty in part due to the existing regulatory oversight of tourism on Whakaari by government agencies, including by Emergency Management Bay of Plenty and WorkSafe itself.
“The decision clarifies the law in respect of what is required under s 37,” says James Cairney. “It ought to give confidence and certainty to landowners and others who grant access to others for recreational or adventure activities on their land – which is part of the New Zealand way of life.”
Next steps
The High Court decision is the final chapter in the criminal proceedings resulting from the Whakaari tragedy. A coronial inquiry is now underway – the scope of which is broader than the WorkSafe prosecution.
James Cairney states that “the coroner can and should inquire into the role of all the parties involved, including various government bodies, such as WorkSafe itself and its role in respect of the tragedy. People deserve to have the full picture as to why this tragedy occurred.”
Further reading
DC decision: WorkSafe-v-WHAKAARI-Management-Limited-trial-jud-20231031.pdf
HC decision: 2025-NZHC-288.pdf
Comment