Whakaari/White Island tour operators 'can't waiver their way out of safety obligations'

Tuesday, 10 December 2019

Tourists can only visit White Island as part of an organised group.

Any waivers signed by tour guides or tourists travelling to White Island would not make a difference to tour operators' legal obligation to provide a safe environment for their staff and customers.

At least five people have been confirmed dead after Whakaari/White Island erupted on Monday.

Another eight people are still missing, presumed dead.

The explosion has been described as 'unfortunate but not completely unexpected' by University of East Anglia lecturer in geophysics Jessica Johnston. The area's alert level had increased before the eruption.

* How will White Island volcanic eruption affect the rest of New Zealand?**

Tourists who travelled to the island were often asked to sign a waiver saying they understood the risk involved.

Dave Doggart visited at Easter and said the waiver he signed made it clear it was an unpredictable and active volcano.

PM Jacinda Ardern meets White Island emergency staff

But WorkSafe confirmed that a waiver would not remove any of an employer's legal obligations under the Health and Safety at Work Act.

Employers have to ensure, so far as is reasonably practicable, the health and safety of their workers and other people who could be put at risk by the work of the business.

It is not possible to contract out of that requirement.

Dundas Street Employment Lawyers partner Blair Scotland said an employer that was found not to have carried out all its duties could be prosecuted.

If an employer sent employees into a dangerous situation, understanding the risks they were being exposed to, and a death occurred, WorkSafe could look at whether all reasonable practicable steps were taken to address risks, he said.

'It will be interesting to see whether tourism operators or whoever have met their legal obligations in respect to this.'

Bill Hodge, an honorary academic in the faculty of law at the University of Auckland, said tourists would not be able to take personal civil action against tour operators in New Zealand unless they sought punitive damages, claiming the operators had been irresponsible.

Compensation could not be sought for injuries because of the ACC system.

I went to White island on 17 of last month we signed wavers too and were warned of all risks and everyone was VERY INFORMED OF DANGER and the staff were amazing taking care of everyone. pic.twitter.com/qycqto1kgI

— Nixx Rhodes (@NixxRhodess) December 9, 2019

But he said people who bought their tickets for the Royal Caribbean-owned Ovation of the Seas in the United States could have recourse to take action against the cruise line in the courts there.

Worksafe says that when there is no charge for an operator to use land for adventure activities, but permission is given, the owner or manager of the land has a duty to warn of any out-of-the-ordinary hazards that could cause hazard.

When there is payment for use of land, the owner or manager must take all practicable steps to ensure the activity is safe.