The Whakaari Eruption - What happens when the regulator casts the net too wide?
On 9 December 2019, New Zealand experienced its most deadliest volcanic disaster since the Mount Tarawera eruption in 1886. Whakaari (White Island) violently erupted spewing toxic gas, ash and rocks into the air. The eruption killed 22 people and left 25 others seriously injured. The social and political impact left a nation shocked and a government clamouring to find answers and someone to blame.
On 30 November 2020, WorkSafe New Zealand (“WorkSafe”) filed criminal charges against 13 separate parties. In short, Worksafe claimed that while the eruption was unexpected it was nevertheless foreseeable. It also claimed that various tourist operators failed to follow health and safety guidelines and as a direct result, failed to protect people in their care.
Now let’s break the decision down and look closely at the legislation.
Health and Safety at Work Act 2015
Under the Health and Safety at Work Act 2015 (“Act”) the duties and responsibilities are extensive. Further those same duties also extend to situations where the activities of a Person Conducting Business or Undertaking, otherwise known as a PCBU, affects members of the general public (i.e the PCBU has an actual influence and control over an activity where harm occurs).
Section 36(2) provides the who, the what, the how and the why – all the ingredients required to undertake a robust examination of the facts. It states what steps a PCBU must put into place when its activities impact on “other persons.” But like most things in life, there are limitations to when the legislation is triggered. The law cannot prescribe every scenario that has the potential to cause harm, as that would narrow the focus of any investigation. Instead the exercise allows the person reading the legislation to apply an objective standard to the facts of the case.
Section 36 Primary Duty of Care
(1) A PCBU must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers who work for the PCBU, while the workers are at work in the business or undertaking; and
(b) workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.
(2) A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
Legal Argument
Despite the fact that the National Emergency Management Agency (“NEMA”) did not deploy any of its workers or send any other workers to Whakaari, the argument put forward by WorkSafe was that NEMA had a duty to keep the general public actively informed about the level of volcanic activity on Whakaari. The basic premise here being that, had NEMA kept the general public informed about the volcanic activity, tourist operators and the like would not have travelled to the destination in the first place.
Keep in mind that against this backdrop, one needs to take stock of the literature in this field which clearly states that it is near impossible to predict the date of an eruption. Determining when an eruption is likely to happen is based solely on probability.
Nevertheless, WorkSafe argued that the process of carrying out that work was not only limited to sending workers to Whakaari but also included what they called NEMA’s work product. This body of work seems to include such things as notes, supplementary materials and advisory statements. It also argued that “other persons” under section 36(2) included tour operators and visitors to Whakaari.
Going back to what was alluded to above, one can now see that the “scope” has been extended from those persons in direct control of the PCBU, including other persons who could be acting on or following instructions (directly or indirectly) to every man, woman or child who happened to be in the immediate vicinity on that fateful day.
Essentially what WorkSafe was saying is that by failing to consult, communicate, co-operate and coordinate the level of volcanic activity of Whakaari to the widest possible audience, NEMA put lives at risk.
District Court decision
The District Court rejected WorkSafe’s argument and held that the legislative background, namely the draft bills and explanatory notes, all focused on the workers and the workplace. This is what we call the “intention” of the legislation.
It also noted that the broad duty of care that was proposed by Worksafe went too far and would require additional statutory guidance.
As a result, the Court confined the scope of the duty of care to work activities and not work product (based on the unique facts of this case). However, it should be noted that this particular case opens the door to further debate on where the boundary should be set insofar as the duty to the general public is concerned.
In the writer’s humble opinion, to grow the scope beyond the limits of the legislation would result in something grossly unfair and unreasonable. It would artificially grow the influence and control element (over any activity that a PCBU engages in) to a point where objectivity is completely lost and the assertion itself becomes absurd.
This case clearly demonstrates that WorkSafe is determined to push ahead and continue to debate the issue at a later date.
If you need guidance on what constitutes work activity or work product, please do not hesitate to contact us. We’re happy to meet onsite to discuss your requirements.