WorkSafe have been dealt another blow in the Whakaari / White Island trial, its case collapsing against two more companies today.
As a result the remainder of its prosecution is now hanging by a thread.
Last week the owners of New Zealand's most volcanic island – Andrew, Peter and James Buttle – all had their charges dismissed after Judge Evangelos Thomas in the Auckland District Court found there wasn't enough evidence in the case against them.
Today, Tauranga Tourism Services (TTSL) and ID Tours have both had their health and safety charges dismissed as well.
Neither company actually took tourists to the island directly, but rather facilitated bookings with other tour operators.
It leaves Whakaari Management Limited, the brothers' business, as the sole remaining defendant in the case.
It comes after 22 people died as a result of the December 2019 disaster and almost all of the survivors suffered severe or critical injuries.
The charges were brought by WorkSafe and relate to alleged health and safety failures in the lead up to the disaster.
None of the charges relate to the eruption itself or the aftermath, including the rescue and recovery of victims following the eruption.
'The result is I grant both applications' - judge
Judge Evangelos Thomas laid out the reasoning behind his decision to the court.
"Tauranga Tourism and ID Tours are elements of a commercial supply chain, facilitating a specific and risky product with clearly identifiable consumers," he said.
"Had it been a single entity model [as opposed to a supply chain], that entity would have breached the Act."
However, he said that ID Tours and TTSL have a duty under the Health and Safety at Work Act 2015 "only in relation to their own workers, workplaces and other persons associated with their own work activity".
"Should I amend or substitute either charge? No party suggested I should amend," he said.
"The result is I grant both applications. Charges against each of Tauranga Tourism and ID Tours are dismissed."
'Conflicting and confusing' - defendants
The lawyers for the two companies strongly criticised WorkSafe's case in their applications.
David Neutze, representing ID Tours, had argued the company's position in the "supply chain" should be considered.
"WorkSafe's case has been conflicting and confusing," he said. "This case is very much hindsight perfection."
"What is it that ID Tours was meant to do? They weren't meant to do risk assessments, they weren't meant to decide whether the tours were safe but somehow they were to provide appropriate and up-to-date safety information, whatever that is.
"ID Tours does not have the duties alleged and/or to the extent that it did, it did not fail to take any reasonably practicable steps," he said.
Sarah Wroe, lawyer for TTSL, similarly argued: "The putting at risk arises when the tourists set foot on Whakaari.
"We still don't quite know what it is that ID Tours and TTSL were meant to do.
"Were the allegation a general failure to act with others to obtain appropriate and up-to-date health and safety information, that is too general a charge for this court to safely convict," she said.
"And indeed, if the court did convict on that charge, TTSL would be left in the position of still not quite knowing what it was meant to have done that it didn't do or how it could have done anything different."
'Each failed to do the bare minimum' - prosecution
Steve Symon, lawyer for WorkSafe, responded: "These defendants were running businesses that involved, among other things, being paid to facilitate tours to Whakaari. That was part of their work activity."
He said that meant the companies had a responsibility to ensure customers could make an informed decision.
"These defendants each breached their respective duties as they each failed to do the bare minimum," he argued.
Symon and Judge Thomas described a "bucket" of health and safety advice.
"It's not their job to figure out what should be in the bucket," Symon said of ID Tours and TTSL.
"It is just their job to ensure each PCBU proactively got the things from that bucket and made sure it was passed on."
A PCBU is "a person conducting a business or undertaking", used here to refer to ID Tours and TTSL.
"Importantly, even though the safety terms and the VAL (volcanic alert level) information was not as great as it could have been, it still would have made a difference," he stressed. "That's the evidence we've heard in this courtroom.
"We've heard it from the survivors – who received nothing – saying 'something would have made a difference'."
By Yvonne Tahana and Jordan Lane
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