Whakaari defendant had duty to inform tourists, operators of volcanic risk: Lawyers

Whakaari / White Island eruption in December 2019. Photo / NZME

National Emergency Management Agency (Nema) had a duty to inform tourists and tourism operators about the volcanic risk on Whakaari, WorkSafe lawyers say.

Nema is one of 13 defendants charged by Work Safe New Zealand with health and safety breaches in the lead-up to the Whakaari/White Island eruption on December 9, 2019.

Forty-seven people were on the island when it erupted, 22 died and many others were seriously injured.

Over the past two days, Nema has made a legal challenge in the Whakatane District Court to have a Health and Safety at Work Act charge laid by WorkSafe dismissed.

Nema is accused of failing in its duty to ensure as "reasonably practicable" that the health and safety of other persons, including tour operators and tourists on Whakaari, were not put at risk from the work it carried out as part of the business or undertaking.

Namely taking steps to eliminate or reduce the likelihood of the risk exposing individuals to death or serious injury.

This included communicating the risk posed by the volcanic activity to the public.

The alleged period of offending was between April 4, 2016, and December 10, 2019.

The charge carried a maximum penalty of a $1.5 million fine.

WorkSafe New Zealand has opposed Nema's application to dismiss the charge.

Today, in Whakatane District Court, WorkSafe prosecutor Michael Hodge said the key issue in dispute for the prosecution was the legal interpretation of Nema's national role at the time of the eruption.

Nema's lawyer Victoria Casey QC argued that the Crown's agency's functions and responsibilities were "much narrower" than WorkSafe alleged and Nema did not have a local operational role.

Hodge pointed Judge Evangelos Thomas to Nema's National Disaster Resilience Strategy, which he said was the strategy in place at the time of the Whakaari eruption.

"Disaster risk reduction is a real theme throughout this strategy and the strategy also emphasises the need for Nema to be proactive rather than reactive in its response.

"We say it was not just Nema's role to merely tell others what they should do in terms of risk reduction management. They also have a duty of care to communicate the potential risk to the public from hazards such as Whakaari so people can make informed decisions."

Hodge said a memorandum of understanding between Nema and GNS Science was clearly to assist Nema to carry out its risk reduction functions.

"We say that Nema's risk communication role was not just limited to emergency situations or periods of unrest leading up to an eruption. We say its actual day-to-day work engages this duty.

"What we see is the Nema staff did carry out these types of functions, and pushed for more information from GNS when needed... However, we say there were significant omissions, but those are for trial."

"The point I would make is that Nema absolutely has the responsibility for communicating easily understood hazard risk information to the public."

WorkSafe lawyer Kirsty McDonald QC said WorkSafe was not saying Nema had the power to stop people going to Whakaari but it could have issued an advisory communication.

"And we say none of this was too much to ask and it is entirely consistent with Nema's functions under the legislation."

Casey said despite the memorandum of understanding with GNS, Nema's obligation to issue a national warning did not even engage until there was a national emergency or emerging emergency event.

WorkSafe's decision to charge Nema was "flawed and misconceived" as Nema has no operational role at a local level, nor had the grounds to issue a warning or alert in the lead up to the eruption, she said.

"We cannot be held responsible for work that we don't have a statutory duty to do," she argued.

"And nobody is suggesting that Nema's national warning and advisory system is flawed."

Judge Thomas said he expected to release his oral decision as soon as possible.