Both pilot and brother of Whakaari tour guide against WorkSafe charges

10:27 am on 1 December 2020

The brother of a tour guide who died on Whakaari/White Island says he doesn't think charges should have been laid against anyone over what he believes was an act of God.

Mark Inman.

Mark Inman. Photo: RNZ / Dom Thomas

Mark Inman, the brother of tour guide Hayden Marshall-Inman killed on Whakaari/White Island in last December's volcanic eruption, told Morning Report his brother had been "in the right place at the wrong time".

A commercial pilot involved in the rescue operation also disagreed with WorkSafe prosecutions, believing that it simply added to the anguish.

There were 47 people on the island, 22 of whom were killed outright or later died of their injuries.

Yesterday WorkSafe said the Whakaari/White island explosion was a tragedy that was unexpected but not unforeseeable.

Announcing yesterday it had charged 10 organisations and three individuals over the incident, the body's chief executive Phil Parkes said visitors to the island would have all expected the companies to have had their health and safety in mind.

No caption

Hayden Marshall-Inman. Photo: Supplied/ Facebook/ Stephen Parker

The owners of Whakaari/White Island have confirmed they are among those charged in relation to last year's deadly eruption.

Inman said he was shocked and surprised by the charges, given the tour company had been operating according to established guidelines.

On the anniversary of the tragedy he said it wasn't a time to point blame, but to mark the tragedy and acknowledge the impact it had had on his family and the wider community.

"It's not really for us to decide whether charges should be laid or not. My brother was one of the key guides out there and he wouldn't have gone out there unless he thought it was safe and to point blame or lay charges, he'd be pretty disappointed.

"At the end of the day, they were at a volcano and I still believe they were in the right place at the wrong time, it was just mother nature and it happens.

"I don't think there should have been any charges laid, due to the nature of the activity they conducted".

The eruption seen from the tourists' boat after they had left the island.

Photo: Screengrab / YouTube / Allessandro Kauffman

His comments were echoed by commercial pilot John Funnell, who was there on the day of the eruption.

"When you have that number of people dying we live in a society now where somebody has to be held accountable... Do I agree, with the prosecution? I have some difficulties with it, to be quite honest," he said.

"None of this action is going to bring anyone back. Is it going to give anyone any satisfaction by bringing charges and them having to defend it, I think it just adds to the anguish."

He told Morning Report the island had been at a level 2 alert for a long time and there had been a level of risk that couldn't be negated.

Funnell said WorkSafe was sending the wrong message to the public that everything should be safe, whereas people should be making informed choices about risk.

"It's one of the downsides of the WorkSafe legislation. If you're going to hold people accountable, it makes the general public believe, falsely, that everything is safe, when in fact the whole time you have to be aware of the dangers and make those calls yourself."

No direct communications were possible between the island and the mainland, so he flew overhead and relayed messages between the helicopter crews landing and Air Traffic Control in Tauranga to ensure emergency care could be organised.

Funnell was pleased no one involved in the rescue had been charged. He said the fact those rescuers were not investigated showed the inconsistency in WorkSafe's investigation.

"Those people went in there knowing there was danger, but of course they had to in order to save the people alive and get them out of there...

"Those local operators who went in there, who had no medical training and had no air ambulance equipment, they managed to get the survivors onboard in commercial helicopters and get them back to the mainland."

He said they were aware that there may be some legal implications of their actions, but they had made a quick assessment.

"We discussed it on the radio and said 'these people urgently need help. They know they're there. They're in terrible pain, someone has to do something and let's get in there, get them onboard and get out as quickly as we can' and that's what we did."

WorkSafe says the rescue and emergency element would be looked at separately. Including rescues in proceedings would have been wrong, Funnell said.

"It would send a terrible signal to humanity that you could be held liable trying to rescue someone."

WorkSafe didn't release its report as it forms part of its legal case, nor did it name those charged to give companies and individuals the right to apply for name suppression. However, most of those entities subsequently wavered anonymity.

Nigel Hampton QC told Morning Report the generality of WorkSafe's announcement of charges under the health and safety act meant it was hard make legal comment.

"Once the summons are served on the various defendants, I imagine that will contain some particulars," he said.

But the legal action had unusual elements, particularly as it involved a government agency bringing charges against other government agencies.

GNS Science and the National Emergency Management Agency have been charged.

"This is all in the background of a regulator who has taken these steps, WorkSafe, who possibly, it may be argued by some of those now charged, had some responsibilities as well in this area."

He added that "clashing principles" of public's right to know and be informed and right of defendants to apply for name suppression could have been avoided if the WorkSafe press event had not occurred in advance of court proceedings.

The island is owned by the Buttle family, through Whakaari Management and its three directors, James, Peter and Andrew Buttle, who have confirmed they are the three individuals charged.

White Island Tours and Volcanic Air Safaris both say they're facing charges, and GNS Science and the National Emergency Management Agency have also waived name suppression.

The Crown Research Institute is responsible for alerts over volcanic activity at the island.

Professor of volcanology at the University of Auckland, Shane Cronin, said he hoped the tragedy would lead to improved volcanic hazard management by GNS Science.

"I think there will be a good discussion and it may well help us define the way in which science communication moves forward in volcanology."

He said it was difficult for scientists to predict an eruption. The one lesson in hindsight that could be addressed was that warning systems were too slow in getting out information to tourists on the island in real time so they could make decisions about the level of risk.

Cronin also hoped the WorkSafe legal action won't deter scientists from making public statements on volcanic activity for fear of being prosecuted.

Workplace Relations and Safety Minister Michael Wood is confident that WorkSafe is adequately resourced to prosecute people and organisations in relation to the eruption and that it shows no favour to any agency.

"The fact that they have shown no favour, that they are prosecuting both private and public sector agencies, should give people some confidence that they will enforce the laws regardless of whom they believe may have broken those laws," he said.

Wood said WorkSafe's role in the tragedy would also be looked at.

Get the RNZ app

for ad-free news and current affairs