Richard Raymond KC acting for White Island Tours Ltd at the Whakaari White Island sentencing sentencing hearing in the Environment Court, Auckland, 26 February 2024. Photo: RNZ / Marika Khabazi
Several companies being sentenced for health and safety failings in the lead up to the Whakaari White Island eruption argue that their culpability needs to be considered in the context of WorkSafe's own failings in the disaster.
It is the third day of the sentencing hearing of Whakaari Management Limited, White Island Tours, Volcanic Air Safaris, Aerius and Kahu NZ - each facing fines of up to$1.5 million and reparations.
Research institute GNS Science will be sentenced separately on Thursday.
White Island Tours (WIT), which earlier pleaded guilty, is offering $5 million in reparations and seeking up to 55 percent reduction in fines.
Its lawyer Richard Raymond KC argued that WorkSafe's submission of $1.2 million as a starting point in fines fails to recognise the "unusual circumstances" of the eruption.
He said that the most "unusual" feature is WorkSafe's own role in the circumstances.
"[WorkSafe] it is in the awkward position of being a participant in events, of being an unprosecuted party which failed itself in spectacular fashion, the impact of this and other mitigating factors materially reduces White Island's culpability," he said.
Raymond said as an adventure tourism operator, WIT consistently passed audits by Adventure Mark, which were approved by WorkSafe.
"WorkSafe agreed with Adventure Mark that 1. WIT would be audited by Adventure Mark as a trekking activity, without regard to the volcano component of tours to Whakaari and 2. Adventure Mark did not need to procure any volcanic expertise to support its audit team, tasked with auditing WIT."
Raymond said those decisions were not communicated to WIT prior to the eruption on 9 December, 2020.
He said while WIT accepted that it could have done more to conduct risk assessments and provide adequate personal protective equipment (PPE), it had no reason to think prior to the eruption that it had issues in the way it ran its tours.
Helicopter tour companies Volcanic Air Safaris, Kahu NZ and Aerius also maintained that they were misled by WorkSafe and government agencies on the safety risks of tours.
Their lawyer Fletcher Pilditch KC said the companies were given mixed messaging since 2015 about whether they needed to register as adventure tourism operators.
But it wasn't until about a month before the eruption in December 2019 that they were told they needed to register.
"The agencies that were stakeholders in the conduct of activities on Whakaari consistently messaged, in my submission, that there was a safe way to take tours to the island, that there was an acceptable level of risk that could be mitigated,
"When plainly that was wrong, my clients were wrong, WorkSafe were wrong, other government agencies were wrong,
"And of course they were operating in an environment where not only there was tacit acceptance of that risk by all, there was active encouragement that they should expand and take more visitors to the island," he said.
Lawyer Iva Rosic said Volcanic Air Safaris has offered $300,000 in reparations, but said it has no cash to pay a fine.
The company has been in liquidation since 2022, and said it currently doesn't have enough cash and assets to meet creditors' claims.
Rosic said Kahu NZ and Aerius both were in a precarious financial position and unable to pay a fine.
Both Kahu NZ and Aerius have applied for interim suppression on financial material, which has been granted by Judge Evangelos Thomas.
Meanwhile, WorkSafe Prosecutor Kristy McDonald KC said WorkSafe has accepted its own involvement and the context, and that those factors reduces culpability for the defendants.
However she said where they differed from the defendants was what "weight" to be placed on that context, and on the mathematical assessment in culpability.
