Whakaari White Island case a turning point for recreational access

The High Court’s decision in Whakaari Management Ltd (WML) v WorkSafe relieves landowners of liability concerns around recreational activities and natural hazards. This is a significant win for recreational access.

Since the Health and Safety at Work Act (HSWA) was introduced in 2015, the law has lacked clarity, rousing landowners’ concerns that they could be liable for recreation-related accidents on their land, leading to many high-profile access closures. This chilling effect was exacerbated by WorkSafe’s prosecution of WML (a landowner) – in respect of recreational activities (walking tours) on Whakaari/White Island following the tragic eruption in 2019, and WML’s subsequent conviction in the District Court.

When WML appealed to the High Court, the Aotearoa Climbing Access Trust (ACAT) sought to intervene in the case on behalf of the outdoor recreation community. ACAT’s core argument was that responsibility for health and safety in recreational activities should sit with the people doing or providing the activities, not with landowners or managers who merely allow access to their land. Making this distinction was essential to combat the trend of access closures. 

The Court granted ACAT’s application to intervene and subsequently agreed with ACAT’s submissions, in a judgment that clarified the law and should resolve liability concerns for most landowners. In summary, the Court found that: 

• Merely providing access to their land does not make landowners responsible for managing the risks associated with recreational activities or make them liable for any accidents.  
• This holds true whether the activities are personal or commercial, and even if the landowner charges an access fee or sets reasonable access conditions.  

As far as we understand, WorkSafe has not filed any application for leave to appeal the decision by the required date, so Whakaari is now settled law. This is a game-changer for recreational access, as we can now reassure most landowners that they will take on no risk of liability if they permit public access.  

More information about the case and its application for landowners and recreationists is below. 

Case facts and Court decision 

Walking tours on White Island were a recreational activity but were also considered ‘work’ because the tours were commercial operations with paid guides. This meant that places on the island where the tours took place were a ‘workplace’ under the HSWA.  

After the eruption, WorkSafe (the HSWA regulator) brought several prosecutions, including against the tour companies operating on Whakaari and WML. The tour companies all pleaded guilty to charges that they failed to comply with their HSWA duties in respect of employees and clients. WML on the other hand contested the case, arguing instead that it did not owe a duty under the HSWA in respect of the island workplace because the work there was conducted by others. 

The central issue for the High Court was whether WML owed a duty under section 37 of the HSWA, which applies to those who "manage or control" a workplace. The High Court found that WML did not have this duty because, while it granted access to the island for tour operators, it did not actively manage or control the island workplace.  

As the workplace in this case was essentially bare land (as compared to, say, a commercial building), in a practical sense there was nothing for WML to manage or control.   

The Court also ruled that WML's licence agreements with the tour operators and the conditions they contained (including access fees), did not give it day-to-day control over safety or operations on the island. Nor did the existence of natural hazards on the island create a section 37 duty.  

The High Court overturned WML’s conviction and found it was not liable under the HSWA.  

Application for landowners and recreationists 

Some key points in the Court’s judgment are relevant for any landowners who permit recreational access – and important for recreationists to be able to pass on if liability concerns arise.  

Most importantly, merely providing access to land does not create HSWA duties. The Court stated: 

“As ACAT submits, all landowners can control who accesses their land. It does not follow that such landowners therefore have power to actively and practically manage or control what happens on their land following access being granted.”

Further, recreational activities such as tramping, hunting, mountain biking and kayaking all involve inherent risks, and interaction with natural hazards like rivers and cliffs. These risks and hazards are a foreseeable part of the activities, and the Court agreed with ACAT that responsibility for managing them sits with the recreationists who freely choose to accept them – not with landowners.  

The only exception is when the landowner also provides the relevant activity – for example, they run commercial caving tours on their land.  

The Court also agreed with ACAT’s submission that: 

• a landowner who sets reasonable access conditions, such as asking rock climbers to wear helmets, does not therefore have ‘management or control’ of the activity or assume liability under the HSWA; and 
• by charging an access fee, a landowner does not automatically trigger a duty under section 37 of the HSWA.  

So, what are landowners responsible for? They should warn visitors of any ‘unexpected hazards’ on their land, and of course, manage risks created by their own business operations or undertakings. Otherwise, they are not responsible for accidents that occur when adventure enthusiasts choose to engage in pursuits involving natural hazards (rock walls, white water rivers, mountain bike trails, etc). 

Next steps 

ACAT hopes to work with other recreation organisations to ensure the changes are correctly reflected in WorkSafe guidance, widely distributed to landowners and outdoor recreationists, and reflected in the Government’s ongoing review of the HSWA. We will also be discussing these changes with key crag owners where liability concerns have been an issue. 

Thanks  

Our deepest gratitude to John Dixon KC, Charlie Cox, Bell Gully, and John Palmer for their incredible pro bono legal work that made this possible.