Whakaari/White Island in 2019. Photo / George Novak
Whakaari/White Island in 2019. Photo / George Novak
The owners of Whakaari/White Island will face trial next year over the 2019 volcanic eruption that killed 22 people, after they failed to have WorkSafe charges against them dismissed.
There were 47 people on the sight-seeing island near Whakatāne in the Eastern Bay of Plenty when it erupted on December9.
Twenty-two people died, many overseas tourists from a cruise ship docked in Tauranga, and 25 others were injured.
WorkSafe claims the owners, three Buttle brothers, didn't do anything to ensure safety on the island before the volcano erupted.
The Buttle brothers James, Peter and Andrew, are among 13 parties charged by WorkSafe with health and safety breaches in relation to Whakaari between April 4, 2016, and December 10, 2019.
The brothers are alleged to have failed their due diligence, including failure to acquire and keep updated knowledge of health and safety issues, and failure to gain an adequate understanding of the hazards and risks associated with access to the island.
Their company Whakaari Management Ltd [WML] is also alleged to have failed in its duty to workers and tourists, including ensuring adequate means of evacuation from the island.
Injured from the Whakaari/White Island volcanic explosion are ferried into waiting ambulances at Whakatāne Wharf. Photo / NZME
Today in the Auckland District Court Judge Evangelos Thomas declined the Buttle brothers' application to have the charges against them thrown out and said the case had been, and always would be, about fairness.
"With nine months to trial I would not have found any prejudice to the Buttles' fair trial rights.
"I sympathise not only with the Buttles but for all those who have had to wait a long time for this case and investigation to crystalise."
He said WorkSafe's allegation was that each of the Buttles did nothing to prevent the catastrophic outcome of that day.
"The burden of proof is not on the Buttles. It is instead up to WorkSafe to prove they did nothing," he said in releasing his decision on their application.
"There is no doubt WorkSafe has and continues to give serious thought to whether its case is effective," Judge Thomas said.
At an earlier hearing for the application, the brothers' lawyer David Neutze argued that WorkSafe's claim the trio didn't do anything to ensure safety on the island was "plainly wrong".
Neutze said tour companies were granted permission by WML to access the island through various licensing agreements, but from that point on the company did not control the outcomes of those tours.
Tour companies were required to meet health and safety obligations in each agreement.
"If you look at almost every lease, they put [health and safety] obligations on licensees," Neutze said.
Still from video shot from a tourist boat next to Whakaari just as the volcano erupted about 2.15pm on December 9, 2019. Photo / Supplied
Neutze said the prosecution was one of the most important cases WorkSafe had brought before the court, which highlighted the need for it to conduct a thorough investigation.
WorkSafe prosecutor Kristy McDonald, KC, said the Buttles were well aware of the case against them.
Judge Thomas said that if WorkSafe's case was that the Buttles took no steps then there would be "quite a mountain to climb".
He asked McDonald if WorkSafe was claiming the Buttles took no steps, or if the ones taken were not good enough.
"WorkSafe's stance is that they took no reasonable steps," McDonald replied.
McDonald told the court that as a director of a company you have to have an understanding of the obligations you must uphold.
The Buttle brothers and Whakaari Management Ltd, Geological and Nuclear Sciences [GNS], the National Emergency Management Agency [Nema], White Island Tours, Volcanic Air Safaris, Aerius Ltd, Kahu NZ, Inflite Charters, ID Tours New Zealand, and Tauranga Tourism Services were all charged after WorkSafe laid a total of 20 charges.
