White Island eruption: legal experts examine issues of culpability

White Island on Tuesday. Photo / White Island Flights

Legal experts have begun discussing culpability and possible negligence issues after Monday's deadly Whakaari/White Island volcanic eruption.

Massey University deputy vice-chancellor Professor Chris Gallavin, Auckland barrister Tim Jones and lawyer and class action specialist Adina Thorn commented on what could happen next after police and WorkSafe NZ investigations were concluded.

After Monday's eruption, six people have been confirmed dead, eight are missing but presumed dead, 30 are in hospitals. Of those, 24 are in four regional burns units and the other six will be transferred as soon as possible. Three people have been discharged.

Police Deputy Commissioner John Tims initially announced a criminal investigation into the deaths at Whakaari/White Island, to run parallel to the health and safety WorkSafe investigation. But the criminal investigation was later retracted and instead an investigation will be done on behalf of the coroner.

A spokesperson for Royal Caribbean said: "We are devastated by today's events and our hearts go out to all those affected by this tragedy."

Gallavin told Newstalk ZB's Mike Hosking today it was "sensible" that WorkSafe was involved and investigating.

"In one sense, this is a workplace for tourist operators. But you know if you or I have an injury - and it's a serious injury at a workplace - we would normally shut down the workplace and the investigators from WorkSafe would come in."

View from the Westpac Rescue Helicopter on Tuesday. Photo / supplied

Police even announcing initially a criminal investigation "gives the impression that they have already determined there is criminal culpability and they're just looking for where that might land. What they've said in walking back from the use of the word criminal is look, it's almost like a pre-investigation. If at any time there is evidence that would suggest criminal charges ought to be laid, then those will be addressed in due time but those are weeks and months ahead."

Asked about what crime might have been committed, Gallavin referred to the Pike River Mine disaster and CTV Building tragedy, both with elements of a natural disaster involved, he said.

While a volcano erupting might not be the subject of culpability, what could be the issue was "the culpability of putting people in harm's way of the volcano going up. White Island is not a place you or I or other New Zealanders would normally have any interaction with unless we take positive steps to get on a boat or get in a helicopter to fly there and that takes operators to take us there. No, you can't say culpability of the explosion but you can say about the liability and negligence of putting people unnecessarily in harm's way," Gallavin said.

He questioned whether it was a reasonable risk that was taken and referred to a duty of care owed by the tour operators: "You can't unreasonably put people in harm's way. Always, there's always an element of risk, especially with an active volcano."

Barrister Tim Jones. Photo / Dean Purcell

Jones said: "Someone is going to be in the gun potentially for a WorkSafe prosecution."

Any legal action could seek to name many defendants involved in the tragedy in the hope of success in any possible court action, he said.

"Civil litigation would look at as many people as possible - and always those with the deepest pockets. Who has insurance?" Jones asked.

The legal relationship between the cruise line and White Island Tours could be examined, particularly whether the tour company had a license to bring people onto the island."

Jones said if he was advising Whakaari's owner - a company controlled by Peter, Andrew and James Buttle of Auckland - "I would have a license exonerating the family from any legal liability. There could be a contract saying the Buttle family will have passed their collective responsibility back to the tour company and they have no liability at all."

Jones said the central point of any possible legal action would be whether tourists signing a waiver would shield a party from proceedings. Families might want to sue "but there's the question about what they are suing for: criminal negligence, civil damages and compensation?"

Thorn said legal action could follow the tragedy but expressed concern about discussing legal issues just two days afterwards.

"My gut feeling is - it's just too painful. People have to get through all this before you look at any legal issues. The last thing people need is legal stuff and you don't want to give people false hope," Thorn said.

Lawyer Adina Thorn. Photo / Jason Oxenham

Whether action could be taken for negligence, under the terms of a contract or under health and safety in the workplace law was up in the air, she said.

Asked who any possible action might be directed at, Thorn said: "My general view is the tour operators and maybe the cruise line, which could be endorsing these tours."

Asked how victims or families would band together, she said: "Sometimes people in these situations contact a lawyer, or each other via social media."

Businesses which would now suffer financially after the disaster might consider claims under commercial interruption insurance policies, she said.

Paul Quinn, White Island Tours chairman, yesterday estimated around 17,500 tourists took the journey to the volcanic island in the past year. That business was also growing, having bought a new vessel this year to run more regular tours, which would be less weather-affected.

Ngāti Awa, which owns the tour company, has declared total assets of $149 million in the year to June 30, 2019. Tours to the island cost $229/adult and $130/child under 15 up until next March.

Bill Rayner and Anne Martin on White Island last Thursday. Photo / Bill Rayner

Aucklanders Bill Rayner and Anne Martin were on the island last Thursday. They said they had signed a waiver which cited risks but they could not retain a copy of that document because it wasn't in a takeaway form.

All members of the tour group were asked to sign the document before going on the boat and that process was carried out at the reception office of White Island Tours, they said.

Martin said on Tuesday: "They gave us a plastic-covered document which was an overview of the trip. It said where they were going and requested the name and contact details of one next of kin."

Then, she remembers, one staff member said: "You won't be able to sue."

Martin said she thought of all the foreign visitors when that was said to her group. She enjoyed the tour but found it extremely hot and said she was glad to return to the boat at the end.

Jeff Ment, a travel industry attorney in the United States, told USA Today that a cruise line's responsibility was typically contingent on the partnerships they engage in.

"Cruise lines have to partner with reasonable vendors because they don't have any specific knowledge about volcano eruption or volcanic conditions of New Zealand," Ment said. "They're in the business of running a cruise line," USA Today reported him saying on Tuesday.

Paul Quinn of White Island Tours. Photo / file

Quinn of White Island Tours said yesterday: "Devastation is an understatement. This is a terrible tragedy and our thoughts and prayers are with everyone who has been impacted. We acknowledge the considerable efforts from Police and Civil Defence and will continue to do whatever is necessary throughout the rescue operation.

"Our immediate focus is on supporting our staff, manuhiri and respective whānau, who have been significantly impacted and are showing immense strength and courage."

White Island Tours is currently assisting Police and Civil Defence with the official emergency response, Quinn said.