In this episode of Judgment Junction, Partner June Hardacre talks to Partner Matthew Ferrier, and Senior Associate, Nicole Burt, about the outcome of a recent High Court judgment that overturned the conviction of Whakaari Management Limited. Together they discuss the implications of the case for the Health and Safety at Work Act under section 37 and how the High Court came to its decision. The episode provides a detailed analysis of the duty under section 37, the facts of the case, and the implications of the High Court's decision.
[00:06] June outlines the topic of today's discussion: the High Court's judgment overturning the conviction of Whakaari Management Limited under the Health and Safety at Work Act.
[01:06] Matthew explains that section 37 of the Health and Safety at Work Act imposes a duty on PCBUs (Person Conducting a Business or Undertaking) who manage or control a workplace. This duty requires PCBUs to ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to health and safety.
[01:49] Matthew highlights that the New Zealand legislation is based on the Australian model law, but with deliberate differences. The New Zealand version uses the language "who manages or controls" to capture active management, as opposed to the Australian "with management or control," which is broader. This distinction was made to avoid capturing PCBUs who do not have active control over a workplace.
[02:28] Nicole provides a high-level summary of the facts in the High Court judgment. Whakaari Management Limited owned Whakaari White Island and permitted specialist tour operators to conduct walking tours, receiving fees and commissions in return. WML imposed health and safety obligations on the tour operators through licensing agreements but did not actively supervise their health and safety performance. The 2019 eruption of Whakaari White Island resulted in 22 deaths and 25 serious injuries. Following this, WorkSafe laid charges against multiple entities, including WML.
[05:10] Matthew explains that the District Court had a narrower interpretation of section 37 and found that WML breached its duty. In contrast, the High Court took a broader interpretation but concluded that WML did not owe a duty under section 37. Even if it did, the High Court found that WML would not have breached it.
[06:04] The District Court acknowledged the purpose of the Act and the legislative history, emphasising active management or control. The judge distinguished WML's circumstances from passive landowners, noting that WML's business involved enabling commercial walking tours and maintaining a direct relationship with tour operators.
[08:24] The High Court emphasised that merely having the capacity to manage or control a workplace is not enough; active management or control is required. The judge outlined three key questions: what is the workplace, what does it mean to have the power to manage or control it, and did WML have this power in practice.
[10:48] Nicole explains that the High Court focused on the fact that the workplace was the walking tour operations on the island. WML did not have practical control over these operations and relied on responsible government agencies for risk assessments. The court found that WML's licensing agreements and attendance at meetings did not constitute active management or control.
[14:30] Matthew discusses the High Court's hypothetical analysis, which concluded that even if WML had a duty, it would not have breached it. The court noted that WML's requirements for tour operators to understand risks and obtain independent advice were reasonable. The responsible government agencies were best placed to assess and manage the risks.
[19:18] Nicole provides practical guidance for landowners, emphasising the importance of understanding and documenting management and control structures. She suggests conducting a stocktake of properties, clarifying management responsibilities, and ensuring contracts accurately reflect intentions regarding management and control. This helps define obligations under section 37 and ensures compliance with health and safety duties.
[24:29] June highlights the importance of clear contractual language, especially in information-sharing clauses and notifiable events. Landowners should avoid taking on more responsibility than necessary by not agreeing to approve certain actions unless they are actively managing the property.
[26:02] Matthew notes that while the judgment provides guidance, the application of section 37 will depend on the specific circumstances of each case. He reiterates the importance of a case-by-case assessment using the framework set out by the High Court.
[26:48] June discusses the potential for an appeal, noting that WorkSafe may seek consent from the Solicitor-General to appeal the decision. The test for leave to appeal includes whether the matter is of general public importance or if a miscarriage of justice has occurred.
Information in this episode is accurate as at the date of recording Monday, 17 March 2025.
Please contact June Hardacre, Matthew Ferrier, or Nicole Burt if you need legal advice and guidance on any of the topics discussed in the episode.
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