The recent High Court decision overturning the conviction of Whakaari Management Ltd (WML) in relation to Whakaari White Island (Whakaari Management Limited v WorkSafe New Zealand [2025] NZHC 288) has provided welcome clarification about the duties of landowners and the meaning of the term “workplace” in the health and safety context. The judgment also contains a broad and considered narrative of the complex regulatory regimes which encompass Whakaari.
Background
In December 2019, Whakaari White Island erupted while tourists and their guides were on the island. Twenty-two people died and twenty-five others were injured, many with life-changing injuries. The owner of the island, WML, was convicted in the District Court of breaching the Health and Safety at Work Act 2015 (HSWA). WML was ordered to pay reparation of $4,880,000, and fined $1,045,000.
Duties of landowners
WML was charged with breaching the duty in section 37 of the HSWA, as being a PCBU who “manages or controls a workplace” and who must ensure “so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person”. WML had accepted that it had the usual rights of a landowner, but that those rights were insufficient to engage section 37.
In the District Court, Judge Thomas agreed that the purpose of the section, as demonstrated by changes made by Parliament to the draft legislation, is that:
“To be caught by s 37, a PCBU must in fact be exercising active control or management of the workplace in a practical sense. Owning it is not enough. Making money from it is not enough. Merely being able to manage or control a workplace, but not doing so, is not enough.”
The District Court considered that WML did exercise sufficient control over the workplace that it had duties under section 37, and that WML had breached those duties.
On appeal, the High Court said that:
“The inquiry must, in my view, therefore be one of whether the PCBU has the power or capacity to actively control or manage the particular workplace in a practical sense.”
The High Court noted that:
“a workplace is not simply a physical location. Rather, it is a physical location when used for a business or undertaking. A ‘workplace’ therefore has a temporal element. Some physical locations may only be workplaces when specifically used for work while others may always be workplaces given they are locations where work is always ‘customarily carried out’.”
In addition, any inherent dangerousness or riskiness of that workplace should not dictate the analysis. The Court accepted the submissions of the intervenor, the Aotearoa Climbing Access Trust (ACAT), that whether WML had management or control of Whakaari for the purposes of section 37 “should be the same whether Whakaari is an active volcano with tours to see the crater or a benign predatory-free island sanctuary with tours for those wishing to see the rare native birds”.
In this case, WML granted access to Whakaari White Island, effectively creating the workplace. However, WML did not have the required degree of active management or control of the workplace after it granted that access. There was nothing in the licence agreements that gave WML the ability to control what was happening on a day-to-day basis. The High Court therefore decided that WML did not have a duty under section 37.
The High Court also went on to consider whether, if WML had a duty, it would have breached that duty. Again, the High Court agreed with ACAT’s submissions, that:
“a principled approach to help guide the inquiry into whether a risk arises from the workplace or the work activity taking place there is to ask whether any naturally occurring hazards are a reasonably foreseeable consequence of engaging in the work activity (and therefore to be construed as part of the activity) as opposed to unexpected dangers.”
ACAT provided a useful example of a whitewater kayaker, where the expected rapids in the river would be a foreseeable part of engaging in the activity, but the wreck of a tractor in the river would not be expected or anticipated, and would require a warning.
The Court decided 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.”
WML therefore would not have breached its duty under section 37, if it was found to have one.
Comment
This decision offers some clarification for landowners who allow commercial activities on their land, such as farmers who permit walking groups, quad bike tours, or horse treks and Crown agencies and territorial authorities who have significant landholdings where a variety of activities take place under licences or similar arrangements.
Broadly, the judgment suggests that if a landowner is passive in relation to work taking place on their land, they will not owe a duty under the HSWA to manage that work. WorkSafe’s case would have required WML to second-guess the risk assessment and risk management of the organisations which were actually working on the island, but the High Court has rejected that approach.
In practical terms, this means that landowners should alert people to any specific dangers that would not be expected, but would not be required to manage the very features that people were there to see.
Two words of caution, however. First, WorkSafe may yet seek to appeal the High Court decision, so we may not have received the final word just yet. And secondly, as with many health and safety cases, there is room for interpretation. Whether a landowner has “active control or management” or not will often be up for debate. The answer will often be dependent on the particular circumstances at hand
If you have any questions about this case or would like to discuss what this means for you, please get in touch with a member of our Health and Safety team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
