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Whakaari / white island eruption: id tours fails to get health and safety charge dismissed.

ID Tours is facing a four-month trial this year, alongside other tourism companies, Crown Research Institute GNS Science, and the island's owners, the Buttles. Photo: GNS

A booking agent that helped cruise ship passengers visit Whakaari / White Island has failed in a bid to have a health and safety charge dismissed.

ID Tours is one of 12 parties accused of breaching the Health and Safety at Work Act, leading up to the eruption in 2019.

The company is facing a four-month trial this year, alongside other tourism companies, Crown Research Institute GNS Science, and the island's owners, the Buttles.

Twenty-two people died from horrific burns and blast injuries after the eruption at the submarine volcano in December 2019.

Forty-seven people were on the crater at the time - most were cruise ship passengers visiting with White Island Tours.

ID Tours said its work and obligations in the supply chain did not extend onto the island.

But on Tuesday afternoon, Judge Evangelos Thomas rejected this, delivering his decision in Whakatāne District Court.

"Did ID Tours Ltd owe a duty to tourists on Whakaari? Yes," Judge Thomas said.

"ID Tours acted as a conduit between overseas entities and local tour operators to facilitate the tour booking process ... It remained in constant contact about passenger numbers, cancellations, and any other relevant information for the timely provision of Whakaari excursions."

Judge Thomas referred to evidence from WorkSafe - including a document ID Tours provided to the cruise line Royal Caribbean.

"It [ID Tours] represented that it operates adventurous tours, and quote: 'We live and breathe our safety management system ... This covers ... all risk assessments ... sightseeing venues ... emergency procedures and safety procedures'."

On Monday, ID Tours' lawyer David Neutze argued "The supply chain is being taken too far".

Besides reconciling bookings, ID Tours also ensured "that the right number of passengers got onto the bus in Tauranga and then back off the bus when they came back from a tour", Neutze said.

But WorkSafe's lawyer Kirsty McDonald KC said "far from having a passive or truly administrative role, ID Tours was required to be proactive in ensuring that it obtained and provided health and safety information to Royal Caribbean through to the tourists".

"They had a proactive responsibility and were more than just a ticketing agent," she said.

The trial is due to start in July.

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Whakaari White Island eruption: negligence charges dropped against two tourism agencies

Two of six defendants successfully applied on Tuesday to have charges over alleged workplace health and safety breaches dropped

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A judge has dismissed charges against two of the three tourism agencies accused of negligence in the lead-up to the New Zealand volcanic eruption that killed 14 Australians.

Three tourism businesses and the three owners of Whakaari, also known as White Island, had originally gone on trial in July over alleged workplace health and safety breaches.

The volcano, located on the island off New Zealand’s north coast, erupted on 9 December 2019 , killing 22 tourists and tour guides.

Clouds of boiling steam and ash also left 25 people injured, with many of those suffering extensive and severe burns.

On Tuesday, two of the six original defendants, ID Tours New Zealand and Tauranga Tourism Services, successfully applied in Auckland District court to dismiss charges against them.

Both operators were accused of not co-operating with the other companies in the supply chain to obtain safety information and ensure it reached cruise ship passengers.

Judge Evangelos Thomas said the tourism agencies named multiple grounds for the motions to dismiss charges and the common element to both was whether they had a duty of care to customers of other companies.

“Neither TT nor ID Tours had workers on Whakaari, it was never their workplace, they did not influence or direct tour operators in the carrying out of their work,” Judge Thomas said.

WorkSafe NZ prosecutors had opposed the motions to dismiss charges.

“WorkSafe alleges that both ID Tours and Tauranga Tourism breached a duty to tourists visiting Whakaari under the Health and Safety at Work Act,” Judge Thomas said.

The trial previously heard evidence from Australian survivors of the eruption who said they had been left with life-changing injuries and were never warned of any serious dangers before arriving on the island.

Jesse Langford, from Sydney, told NZ police in a video interview played to the court it “still bothers” him that he had to leave his badly injured parents and missing sister in an attempt to find help after their group was hit by ash while descending the volcano.

Langford was put in an eight-day coma and woke up back in Australia to the news that all three family members had died.

The court heard ID Tours and Tauranga Tourism were part of a purchasing system and supply chain for Royal Caribbean cruise ship passengers buying day trips to the island.

Judge Thomas found that prosecuting the two agencies would go against the wording and intention of New Zealand’s workplace safety legislation.

The decision leaves just one defendant remaining in the trial, Whakaari Management Limited, which is run by the owners of the island: Andrew, James and Peter Buttle.

The three Buttles last week successfully applied to dismiss charges laid against them as individuals.

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Whakaari White Island is owned by one NZ family. Today three brothers face charges over the volcano's deadly 2019 eruption

In 1936 Whakaari White Island was an unusual acquisition for Auckland stockbroker George Buttle, who would eventually pass the private island onto his son and then his grandsons.

Buttle decided not to develop the island. It had erupted before and attempts to mine sulphur or extract salt had all failed.  

Eventually James, Peter and Andrew Buttle would come to inherit the volcano, but today they will face court over its deadly 2019 eruption.

Tourists were in the crater and watching on from a nearby cruise ship when the volcano moved beyond its level 2 warning and into a full-scale eruption.

Forty-seven people were on the island at the time. Twenty-two people died, including 17 Australians.

It has been a very long wait for closure for the families of those who died and for the people who were on the volcano that day, survived its eruption and now live with the scars.

Criminal charges were brought by Worksafe NZ, which alleged the three Buttle brothers, as well as 10 other parties, breached workplace safety laws. 

Worksafe NZ alleges Andrew, James and Peter Buttle and Whakaari Management Limited (WML), the company they are directors of, "failed to obtain expert advice on how WML could ensure that guided tours of Whakaari were conducted safely". 

In total, Worksafe NZ sought to prosecute 13 parties, including research institute and volcano monitor GNS Science, the New Zealand Emergency Management Agency and a number of tourism operators. 

The charges were laid at the end of 2020 and initially every defendant entered a plea of not guilty, but since then several have changed their plea and one had the charges dismissed. 

On Friday afternoon, in the final hearing before the trial was set to begin, three more defendants entered guilty pleas.

The Buttle brothers and their company WML are proceeding to trial, as are the defendants ID Tours New Zealand and Tauranga Tourism Services. 

The role of the supply chain between tour operator and customer will be another major part of this case.

Because ID Tours New Zealand worked as a booking agent, helping cruise ship passengers to visit Whakaari, and Tauranga Tourism Services was the local agent for tour company White Island Tours. 

"The evidence provided by WorkSafe is that it has become common in the tourism industry to have single entities operating as part of a single chain from point of sale to delivery of adventure activities," Judge Evangelos Thomas wrote in an earlier finding. 

"Although that is likely due to practical operational reasons, it runs counter to the Act's purpose that a consequence would be less protection."

ID Tours New Zealand, the Buttles and their company WML all sought to have charges against them dropped, but their applications were denied. 

After more than two years of legal process, the trial finally gets underway this morning. 

For some of the Australian families watching proceedings, this moment marks the start of their best opportunity for closure. 

'There was only the two of us'

Meredith Dallow last saw her brother Gavin as they were leaving a hospital in Adelaide where their mother was receiving cancer treatment. 

It was towards the end of 2019 and Gavin, his partner and stepdaughter were heading off on a holiday aboard the Ovation of the Seas cruise. 

"We walked Gavin to the car and said, 'We'll see you next year,'" Meredith said. 

"And he got in the car and off he drove." 

On the night of December 9, Meredith saw a story on the news about cruise ship passengers that had been on Whakaari as it erupted and saw the images of the thick steam, ash and debris over the island. 

She found her brother's holiday itinerary and started to call his phone. 

"When we weren't getting any answers … I rang Caribbean cruise line … and we were told that yes, their names were on the list of passengers that had been on the island, that had participated on the island tour that day. So then we knew," Meredith said.

Gavin and his 15-year-old stepdaughter Zoe Hosking were killed.

Lisa Dallow — wife of Gavin and mother of Zoe — was placed in an induced coma with severe burns, and only  learned of her loved ones' deaths weeks after the eruption .

Meredith and Gavin made all the decisions about their ageing parents' care together.

"Whenever we needed him, he was at the end of the phone and would always come and help me," she said. 

"Now that he's not here, I've sort of got really nobody. No support person. No immediate family as such. There was only the two of us."

Guilty pleas and dismissed charges 

There is an ongoing coronial inquiry into the deaths in the Whakaari disaster, and after that families will receive final death certificates for the loved ones who died. 

The Worksafe NZ matter will need to be resolved first, so the start of the trial is an important sign of progress for people like Meredith.

The coronial process is likely to give her more information about what happened to her brother that day, but the Worksafe NZ trial will be an opportunity to learn about the factors that led up to it and the series of events that placed a group of tourists on an active volcano. 

"Our main thing is that the owners of the island were charged, and that they're held accountable and the tour company," Meredith said. 

"They're the main ones that we are looking for answers from. 

"No-one should have been there that day. No-one should have been on the island full stop."

Judge Thomas said the Buttles' application to have charges against them dismissed was "almost successful". 

The charges were then amended to focus on the allegation that the Buttles did not obtain expert advice on the risk to the workers and tourists on the island.  

White Island Tours pleaded guilty last week, with WorkSafe chief executive Phil Parkes saying that decision was highly significant.

"We hope the decision of White Island Tours will provide some assurance to the survivors and family and whānau of those who passed that those who had a duty to ensure their safety and failed to do so are being held to account," he said.   

Yesterday, a mihi whakatau, a Māori welcome ceremony, was held in the courtroom ahead of the trial beginning this morning.  

Given the immense public interest in this case, Australian families and other interested parties are able to watch proceedings via a private live stream. 

A public viewing has also been set up in Whakatane, the town closest to Whakaari and home to many of the first responders.

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