High Court Overturns Whakaari Management Ltd’s Conviction Under the Health and Safety at Work Act 2015

Home News & Views High Court Overturns Whakaari Management Ltd’s Conviction Under the Health and Safety at Work Act 2015

The High Court has recently overturned Whakaari Management Ltd’s (WML) conviction under the Health and Safety at Work Act 2015 (HSWA), providing significant clarification on section 37, which imposes duties on PCBUs managing or controlling a workplace. This decision (Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288) offers key guidance for organisations assessing their obligations under section 37.

Background

WML leased Whakaari (White Island) and granted licences to tour operators conducting guided walks. In December 2019, Whakaari erupted, resulting in 22 deaths and serious injuries to 25 others. WorkSafe prosecuted WML and others under the HSWA. The District Court convicted WML under section 48 for failing to meet its section 37 duties, determining that WML actively controlled access to Whakaari and should have conducted its own risk assessment. WML was fined NZ$1,045,000 and ordered to pay NZ$4,880,000 in reparation.

High Court Decision

WML appealed, arguing it did not actively manage or control Whakaari as a workplace. The High Court agreed and quashed the conviction, addressing three key questions:

Did WML owe a duty under section 37?

The Court found that a PCBU must have “active” control, not merely the ability to control a workplace.
WML’s role was limited to granting access and collecting licence fees; it did not actively manage the tour operations.
If WML owed a duty, did it breach it?

Even if a duty existed, the Court found WML was not reasonably expected to conduct its own risk assessment.
Other entities, such as GNS Science and the tour operators, were better placed to manage risks.
Would compliance with the duty have prevented harm?

Additional steps by WML, such as enhanced risk assessments, could have reduced risk.
However, the Court’s primary finding was that WML had no duty under section 37.

Implications for Organisations

The Court’s decision clarifies that merely granting access does not constitute active management or control of a workplace. Organisations should assess their section 37 obligations by considering:

The nature of the workplace;
Whether they have active management or control over it;
Whether their business involves such control;
The appropriate steps required based on these factors.

This case highlights the complexities of section 37 and its application to different business arrangements. Whether WorkSafe will appeal remains to be seen.

Contact our Health and Safety team at Mactodd Lawyers if you require advice on your organisation’s workplace health and safety obligations.

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