Five companies sentenced over Whakaari/White Island eruption
In our Summer 2024 edition published in early February, we wrote on the Whakaari/White Island prosecutions brought by WorkSafe; in this Winter issue we report on the court’s late February sentencing.
Almost five years after the Whakaari/White Island eruption that left 22 people dead and 25 others severely injured, the District Court delivered its sentence for safety failings under the Health and Safety at Work Act 2015. [2]
Five companies were collectively fined $2 million for failing to assess and mitigate risk, and three of the five have been ordered to pay a collective total of $10.21 million in reparations to victims and their families. GNS Science was also fined $54,000 for failing to adequately communicate risk to contractors. [3]
Whakaari Management Limited (WML), one of the five companies sentenced and responsible for managing access to the land, was held liable for a significant portion of the penalties. WML has claimed it is unable to pay the penalties as it has no assets or bank account, even though evidence at trial indicated WML received about $1 million annually from island tours. The judge acknowledged he cannot make orders against WML’s shareholders, but appealed to their ‘inescapable’ moral duty to advance the necessary funds – even if this means reaching into their own pockets.
These penalties are a strong reminder for businesses to take seriously their health and safety obligations or risk hefty penalties.
Commerce Commission win over Viagogo
In a recent judgment, the High Court provided useful guidance on misleading and deceptive conduct, and unfair contract terms under the Fair Trading Act 1986 (FTA). The decision followed a six-year legal battle between Viagogo and the Commerce Commission.[4]
The Commission commenced proceedings against Viagogo in 2018 after receiving thousands of complaints by consumers who had purchased event tickets from Viagogo, only to be refused entry at the events because their tickets were not authentic.
The High Court found that Viagogo had misled consumers in breach of the FTA by:
• Failing to adequately disclose its status as a resale platform
• Guaranteeing customers’ tickets to events, when in practice it often refunded invalid tickets after a customer had already missed the event
• Creating a false sense of urgency for prospective purchasers seeking tickets
• Disclosing additional ticket fees at a late stage of the purchase process, and
• Stating it was an official or authorised source of tickets when it was not.
A clause in Viagogo’s terms and conditions requiring customer disputes to be resolved in Switzerland was also found to be unfair and unenforceable.
Viagogo was ordered to correct the misleading information on its website and update its terms and conditions.
This judgment emphasises the importance of using honest and fair trading practices, and ensuring your terms and conditions comply with the FTA.
Viagogo has appealed the judgment.
[2] WorkSafe New Zealand v Whakaari Management Limited, White Island Tours Limited, Volcanic Air Safaris Limited, Aerius Limited, Kahu (NZ) Limited [2024] NZDC 4119.
[3] WorkSafe New Zealand v Institution of Geological Nuclear Sciences Limited [2024] NZDC 4149.
[4] Commerce Commission v Viagogo AG [2024] NZHC 713.
