White Island Volcano Eruption - NZ trial on alleged breach of Workplace Health & Safety laws

Risk! Engineers Talk Governance
Episode 8, Season 1

In this episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robinson discuss the current New Zealand trial on the White Island Volcanic Eruption.

The White Island volcano erupted on 9 December, 2019 resulting in 22 deaths. Charges were brought against various parties involved alleging breaches in New Zealand's workplace health and safety laws.

This is one of the first big test cases of the WHS and Workplace Health and Safety laws in Australia and New Zealand. And the outcomes will be fascinating will set a precedence.

Transcript

Megan (Producer) (00:02):

Hi, welcome to this edition of Risk! Engineers Talk Governance. In this episode due diligence engineers Richard Robinson and Gaye Francis talk about the current trial in New Zealand regarding the White Island volcanic eruption and the charges brought against various parties under the potential breach of the New Zealand workplace health and safety law.

(00:29):

We hope you enjoyed the episode. If you do, please give us a rating to help spread the word. You can also check out other episodes in this first season. We also have all the details for Richard and Gaye and their business services in the description. If you have any feedback, please let us know.

Gaye Francis (00:49):

Welcome to another podcast recording session. We're a bit different today. We're doing this remotely. (Richard's) at home and I'm at home. But, we thought we'd record a podcast today on the White Island Volcanic Eruption and the trial that's commenced in New Zealand just recently in the last month or so.

(01:06):

A little bit of background. The White Island volcano erupted on the 9th of December, 2019, and 22 people were killed on the island during the eruption. WorkSafe has bought some charges against some parties involved, who own the island and operate. So I think there were 13 parties charged originally.

Richard Robinson (01:30):

Yes.

Gaye Francis (01:30):

And they've alleged to have breached New Zealand's workplace health and safety laws. In the proceedings today, it looks like that six have pleaded guilty so far. One party, the charges have been dropped. And then there's been six proceeded to trial.

(01:50):

So I think, Richard, you were just gonna give us a bit of an introduction on who those parties were and what the charges were, and then we'll go through some of the insight into what what we've been reading in the press reports.

Richard Robinson (02:04):

Yeah. What, what I found particularly interesting, and again, we're just reading the press on this one here, is that the island, it's actually privately owned. It was bought by some grandfather, stockbroker apparently some time ago, and he passed it on to his son and then the son passed on to his three grandsons. So the island's actually owned by these three grandkids. And they've tried at different times to make money out of the thing. And in the end, the only thing that came up with was having tours to the island. So that's what they've been busily selling.

(02:30):

Now, this is a hydrothermal eruption apparently, which I don't know too much about. I know very little about volcanism and those sorts of things, but basically these things apparently can be primed and ready to go. I mean, if you just think of... obviously it's a volcanic island and it's in New Zealand, and they're on the fault line. And hydrothermal basically means there's a pile of water down there, which is suddenly flash into vapor unexpectedly. And apparently when you listen to the volcanologists, it's a very difficult thing to predict. Although it was actually the case that the volcano was showing some energy and energetics, I think it was at level two activity. And I think level three means it's really underway. So the suggestion was that this volcanism was known, from some form of foreseeability viewpoint, which is what the basis of this action is. And in view of this knowledge or lack of knowledge, in the case of the owners and tour operators, they didn't bother to try and find out, apparently they didn't really understand that this thing was perhaps more closely ready to go than it could have been.

Gaye Francis (03:30):

I think that one, just before the proceedings started, the WorkSafe New Zealand chief executive said in one of his interviews: "This was an unexpected event, but that does not mean it was unforeseeable. And there is a duty on operators to protect those in their care". So they're saying exactly that. And I think one of the interesting things at the start of the trial was they started talking about risk assessment, had a whole lot of risk assessment experts in, and they were arguing about the likelihood of it, which was really quite interesting at the start and how likely an eruption was going to be. And I think, going back to that WorkSafe quote, although it was unexpected, it wasn't unforeseeable and it's now happened. So how do we move on from there?

Richard Robinson (04:16):

Well, it's interesting 'cause I remember, I was telling you, I was just looking at the part of the Wrongs Act in Victoria, it deals with negligence and all that sort of thing. And one of the things that it specifically makes the point is that you can have an obvious risk, but it can be rare. You know, the fact that something's rare doesn't mean that it's not obvious. And that you should know and do things about it. And, I think, what particularly interested you was, I mean, I was looking up, one of the parties that got the charges dismissed against them was their national emergency management agent. In fact, they could awarded $40,000 for their expenses for doing all the work. And that point you made, because what the judge said when they were dismissing it says that the NEMA, this nationally emergency management authority of New Zealand never deviated from its position before and after it was charged. That is (i.e.) they had a position, they'd thought it through, they did what they said they were gonna do, and they followed it through. And that was the point that you just made when we were talking about what we're gonna do here.

Gaye Francis (05:11):

And I think that that's the interesting thing, isn't it? And this is what we tell our clients when we do due diligence review for them. You can't always be right, but you can always be diligent. And by having a plan in place and having it thought through, and then acting on that plan, it shows a process, a governance process, which I think the WHS legislation was always aimed at. It was a governance process for organisations to demonstrate that they thought these things through.

Richard Robinson (05:38):

Well, remember that last expert witness case we were doing for that bushfire in South Australia for the South Australia Supreme Court. The lawyer was just asking us for the process. He wasn't asking whether the decision that they'd finally come to was the right decision. They were testing to see whether the steps they'd gone through were reasonable; that they had tried and they'd thought it through and they talked to the right people and maybe everybody got it collectively wrong, but that still didn't mean they weren't diligent.

Gaye Francis (06:02):

And I think that's one of the things that's coming out of the White Island volcano (case); they're saying, well, New Zealand has a volcano monitoring service, the GNS Science, but they weren't specifically engaged by the tour operators or the owners of the island to do a specific risk assessment -- whether that's the right term or not -- on the island, and the risk of actually running tours through the island. So they're sort of saying: Well, there was this expertise in the country, had they gained the information they needed to make a diligent decision about doing the activities that they wanted to do on the island.

Richard Robinson (06:42):

Yeah. It's interesting that whole risk business pops up again, remember the podcast on (language of) risk, we were talking about the fact that the courts used the term a different way -- after the event the fact is obviously certain. It's actually interesting because it was Kiwi (New Zealand) judges we were quoting, 'cause Frank Stocks put us onto those Kiwi judges and Kiwi cases where the Kiwi courts were making the point that, in court risk means the likelihood of the event that happened; in this case, this rare event.

Gaye Francis (07:10):

Mm. The volcano. One of the other interesting things was the first week sort of focused on that risk assessment process and the information that was sought or provided to the various parties about the volcano. And then the second part of the trial is focusing on what else could have been done. Which is really the focus of the WHS legislation or the Workplace Health and Safety legislation in New Zealand.

Richard Robinson (07:39):

But it's the point it's not who owns the hazard, it's who has control.

Gaye Francis (07:44):

And they were talking about apparently there was a shipping container put in place which could have been as a shelter in the event of a volcano, but the volcano apparently erupted very, very quickly and the likelihood of people being able to get to the shelter in situ was pretty unlikely. So now they're looking at what other controls can be put in place to be able to run these sort of activities there.

Richard Robinson (08:14):

Well one of the things that you were mentioning was the fact that the people weren't wearing special clothing. Obviously PPE is the lowest thing you'd ever think about, but one of the problems that the survivors have got is that their clothes melted into them because they were rather basically plastic.

Gaye Francis (08:29):

Wearing active wear rather than cotton clothing.

Richard Robinson (08:34):

I mean, even if you put people in cotton overalls and things like that and made sure they had big safety boots and things like that, you'd be making a clear statement to people that this thing's serious. You wanna think about it, you're just not a tourist snooping at something hoping it doesn't go off.

Gaye Francis (08:49):

Mm-hmm. Which is sort of the way that chemical plants and things like that can spill out toxic clouds and toxic materials. They sort of deal with that, don't they, when you go out onsite, you have to have the full long sleeves, long pants, cotton, so, as you said, it won't melt into you.

(09:09):

But as you said, that's way down the hierarchy of controls. But I don't know that the... they did talk about some engineering controls and I don't know whether they're reasonable or not, but they're talking about ballistic shelters and refuge shelters. And I know in bushfire terms, people are starting to look at that -- being able to shelter in the place if they get stuck, they can do that. Whether a shelter can be designed for a volcano, I'm not sure?

Richard Robinson (09:39):

Well, it's interesting that the army had been in in shiny suits and breathing apparatus to try and retrieve people. And they spent six days apparently in fairly trying circumstances doing the best they could. But, again, if you were put into a big shiny suit with some breathing apparatus, you'd probably think it was a pretty serious event, wouldn't you? Which you otherwise might not consider that to be the case.

Gaye Francis (10:02):

And I think that's part of it, isn't it? It's that information; was the right information shared with the owners and the tour operators and then with the actual tourists. I know when you do those dangerous activities, they sort of give you a waiver to say, I understand those things. But they have to be in layman's terms that the people actually understand, don't they?

Richard Robinson (10:25):

Well I don't think jumping out of an aircraft that anybody's in any doubt of it goes wrong, it's gonna kill you. I dunno if the clarity...

Gaye Francis (10:31):

I don't if you think about it that way when you're 20 though.

Richard Robinson (10:35):

Well, that's part of the point. I don't know if people have thought about it like that. And so it, it's gonna be an interesting thing to see where the Kiwis actually land. I've gotta say that.

Gaye Francis (10:43):

I'm not sure whether the ones that have pleaded guilty, whether they'll just involve fines or whether it'll be jail time. But as you said, this is really the first big test case, isn't it, of the WHS and Workplace Health and Safety laws in Australia and New Zealand. And the outcomes will be fascinating. I think. Will set a precedence going forward.

Richard Robinson (11:10):

Almost certainly.

Gaye Francis (11:12):

So we hope you found our podcast interesting today. A little bit different with Richard and me online together, and we hope you can join us next time. Have a great afternoon.

Richard Robinson (11:22):

Thanks Gaye. Bye everyone.

Gaye Francis (11:24):

Bye.