WorkSafe – Whakaari/White Island prosecutions

This time last year many people were expressing strongly-held views about the tragedy that unfolded at Whakaari/White Island as the result of an eruption.

As a result, there will likely be a range of views about the announcement by WorkSafe, yesterday, that it had filed charges against 13 parties in relation to this tragic event.

The conduct of the prosecution is likely to provide further learnings for businesses (and Boards) about their due diligence obligations – for the business to meet its H & S[1] obligations.

Sadly, despite a new health and safety regime implemented (in large part) as a result of the lessons learned from the Pike River tragedy, we still see a large number of workplace injuries and deaths.  Consequently, there is likely to be many more learnings from the manner in which WorkSafe has investigated the Whakaari/White Island incident and decided to bring charges against a range of parties in relation to their health and safety responsibilities – under the new regime.

Already, the WorkSafe press statement has set the scene for company directors, by noting that:

“…[the eruption] was an unexpected event, but that does not mean it was unforeseeable and [as a result] there is a duty on [business] operators to protect those in their care.”

and that:

“Those who went to the island, did so with the reasonable expectation that there were appropriate systems in place to ensure they made it home healthy and safe… an expectation which goes to the heart of our health and safety culture….”

The WorkSafe press statement goes on to note that, having investigated whether those with any involvement in taking tourists to the island were meeting their H &S obligations – WorkSafe considers that 13 parties did not meet those obligations.

Of the charges laid in Auckland District Court yesterday:

• There are 10 organisations charged.
• Nine face a section 36 charge (H & S Act – failure to ensure the health and safety of workers and others).
• One faces either a section 36 or a section 37 (H & S Act – duty of a PCBU that controls a workplace) charge.

Each charge carries a maximum fine of $1.5 million.

• There are three individuals charged under section 44 of the H & S Act – which requires directors, or individuals with significant influence over a company to exercise due diligence that the company is meeting its health and safety obligations under the H &S Act.  Each charge carries a maximum fine of $300,000.

It should be noted that these are not the highest levels of offences under the H & S Act – for which the prosecution would need to meet a higher threshold.

WorkSafe also confirmed that it did not investigate the rescue and recovery of victims following the eruption.  It adds that, on those matters, no enforcement action has been taken – but they may be the subject of other proceedings (e.g. a coronial inquest).

WorkSafe also notes that it is unable to name any of the parties charged as they have the right to seek name suppression at their first appearance in Court.

It is already known that two government agencies, GNS Science and the National Emergency Management Agency (NEMA), are among the 10 organisations.  Already, this is being portrayed in the media as pitting one Government agency against another.  However, at this early stage it seems to be a move which is both consistent and which underlines the independence of WorkSafe. 

Further information

If you would like more information about any of the matters discussed in this note, please contact me.

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[1] Health and Safety at Work Act 2015.