30 May 2022

On 9 December 2019, Whakaari/White Island erupted while 47 people were on the Island. 22 people suffered fatal injuries and a further 25 were seriously injured. The first of the companies involved in the Whakaari/White Island operations has been prosecuted and fined last month in the case, WorkSafe v Inflite Charters Limited.

Case Summary

Inflite is a charter business that promotes, sells and provides trips to those who wish to visit various New Zealand destinations including Whakaari/White Island. While Inflite sells these excursions as its own, when it comes to Whakaari/White Island, it engaged local subcontractors to conduct the tours.

At the time of the eruption, no Inflite customers were on Whakaari/White Island. However, WorkSafe NZ says that it failed in its obligations in the period leading up to the eruption and Inflite pled guilty.

During the sentencing the Court discussed the following failures by Inflite:

1. Inflite failed to undertake an adequate risk assessment or itself implement appropriate controls to ensure the health and safety of tourists to Whakaari/White Island. This included a failure to ensure its subcontractors were ensuring the health and safety of its customers as far as that was reasonably practicable. The judge stated, “The obligation remains always on an operator, if there are others it has engaged to do this work, or others upon whom it is relying to do this work, to ensure that it has been done. To ensure that it continues to be done. That it has satisfied itself that it has been done properly. It needs to ensure that the subcontractors involved have the appropriate systems and processes in place to ensure that regular and thorough risk assessments are being done. Inflite did not have systems or processes in place to manage that.”

2. Inflite failed to monitor and review known hazards following the changes in volcanic alert levels on Whakaari/White Island. Inflite had no process to monitor and review the increasing alert levels or information in the bulletins in late 2019.

3. Inflite failed to ensure that adequate risk information was available to its customers so they could make an informed decision about whether to visit the island. Inflite did not pass on any of the subcontractor’s safety terms or declarations. It also had no processes to ensure the subcontractors were providing this information.

Other concerns included the lack of back-up plan for evacuating customers in the event of an eruption, and the lack of verification that Inflite customers would be provided appropriate PPE and respiratory protection. Overall, Inflite failed to consult, co-ordinate and co-operate to ensure assessments, protections and controls were considered and implemented.

The Court specifically contemplates the culpability of Inflite and said they were more than just a booking agent - they were the face of the tour as far as the customers were concerned. The Court stated, “If you sell the tour as your own, if you hold yourself out as the provider of the venture, you are the person who needs to satisfy the customer that it is safe for them to purchase that tour. You are a lot more than a booking agent in those circumstances.”

Reparation was not considered in this situation because no Inflite customers were on the island at the time. Inflite were fined $277,500 and ordered to pay prosecution costs of $40,000

Key learnings for businesses

If you engage other businesses or a person conducting a business or undertaking (PCBU) in the course of your work, you need to consider the following:

• Ensure a robust prequalification of the contractor or subcontractors health and safety system.

• Ensure the consultation, cooperation and coordination of activities with all other businesses you share overlapping duties with. This can be practically achieved by discussing the responsibilities and arrangement and recording an overlapping duties agreement between PCBUs. The agreement will consider each party’s ability to influence and control health and safety matters. This will help avoid gaps in the system, ensure clarity of responsibility and avoid duplication of effort in respect of shared health and safety responsibilities. In particular, thought needs to be put into who has control over the work activity, the ‘workplace’ and the workers.

• A detailed monitoring and review programme to verify that the matters set out in the overlapping duties agreement are being carried out effectively and as agreed.

The team at Findex are passionate about making sure businesses have the tools they need to help continually improve the health and safety. Contact our team today to see how our health and safety experts can create a cost-effective strategy for your business.