WELLINGTON, New Zealand — The owners of an island volcano in New Zealand where 22 tourists and local guides died in an eruption had their criminal conviction for failing to keep visitors safe thrown out by a judge on Friday.
The ruling absolves the company from paying millions of dollars in restitution to the families of those killed in the 2019 explosion on Whakaari, also known as White Island, and two dozen seriously injured survivors. Most of the 47 people on the island were U.S. and Australian cruise ship passengers on a walking tour, along with their local guides.
The company, Whakaari Management — run by three brothers who own the active volcano on New Zealand’s North Island — appealed their convictions for breaching New Zealand’s workplace health and safety law in a three-day hearing last October at the High Court in Auckland. They were found guilty in a 2023 trial.
The case hinged on whether the company — which granted access to the volcano to tourism operators and scientific groups, for a fee — should have been in charge of safety practices on the island under New Zealand’s workplace health and safety laws. Anyone in charge of a workplace must ensure the management of hazards and the safety of all there, including at entry and exit points.
Survivors told the trial in emotional testimony during the company’s 2023 trial that they had not been told the active volcano was dangerous when they paid to visit it. They were not supplied with protective equipment, and many were wearing clothing that made their horrific burns more damaging.
In Friday’s written ruling, Justice Simon Moore ruled the company did not have a duty under the relevant law to ensure that the walking tour workplace was without risks to health and safety. He agreed with the company’s lawyers that the firm only granted access to the bare land through permits — and should not have been legally considered an entity that managed or controlled the workplace.
The judge ruled it wasn’t unreasonable for the company to rely on tourism operators — who were licensed under New Zealand law — and emergency management and scientific agencies to assess the risks of activities on the island and manage safety precautions.
The case had far-reaching implications and changed the laws governing New Zealand’s adventure tourism industry, which is often based on outdoor thrills on or around the country’s many natural hazards. Operators must now take all reasonable steps to inform customers of any serious risks.
The lawyers for the company said during last October’s hearing that if the conviction were allowed to stand, it would make other landowners reluctant to allow such activities to take place on their property for fear of being held responsible for the day-to-day decisions of tourism businesses operating on it — a suggestion rejected by New Zealand’s workplace safety regulator, which brought the charges.
Justice Moore said in Friday’s ruling that a too narrow or broad interpretation of the law governing who controls a workplace could have “profound” consequences.
White Island, the tip of an undersea volcano also known by its Māori name Whakaari, was a popular tourist destination before the eruption and was reached by boat or helicopter from the North Island’s Bay of Plenty. When the superheated steam blew in December 2019, it killed some instantly and left others with agonizing burns.
The workplace safety regulator brought charges against several parties — including the company run by Andrew, Peter and James Buttle.
Six entities pleaded guilty in 2022 and 2023 to the charges they faced, including five tour companies and New Zealand’s geoscience research institute, which monitors active volcanoes.
Charges were dismissed against the Buttle brothers individually, along with two tourism logistics firms and the government emergency management agency.
In March, those convicted were ordered to pay a combined total of just over 10 million New Zealand dollars ($5.6 million) in restitution to the bereaved families and survivors. Almost half of that was due to be paid by Whakaari Management Limited.
In his ruling, Justice Moore said he had not overlooked or minimized the “unquantifiable tragedy” of the episode.
“The 47 people who were on Whakaari at the time it erupted should never have been there,” he wrote. The fact that they were revealed “multiple systemic failures.”
The case, however, was decided on the particular law and facts and boiled down to relatively narrow legal questions, he added.
