View of Whakaari / White Island from a monitoring flight on 31 August, 2022. Photo: GNS
The owners of Whakaari/White Island are appealing the criminal conviction against their company which managed access to the volcano when it erupted in 2019, killing 22 people.
Five companies, including that of the volcano's owners, have been fined and ordered to pay millions of dollars in compensation for safety failings leading up to the disaster.
Approached by RNZ for comment, lawyer James Cairney said he filed the notice of appeal in the High Court on Monday, on behalf of the Buttle family.
He said they were appealing the conviction, which found their company Whakaari Management had a safety duty to tourists visiting the island, as landowners.
"The reality is for the people involved with the company, the finding that there was this duty was inconsistent with what they thought," Cairney said.
"The fact that there was a duty hangs heavy on the family behind Whakaari Management. It hangs heavy because of the significant implications that there are from imposing a duty on a person essentially akin to a landowner granting rights of access to another person to conduct activities on their land."
He acknowledged victims of the disaster might find the appeal difficult to understand.
"My clients' hearts go out to all of the victims, it's really difficult for the victims I imagine and that's understandable. All I'd ask is that people keep an open mind and .. .wait till they've heard everything that's relevant to their assessment."
Cairney said the parties felt they were "wrongly charged" and had a right to test that.
"This case, in terms of someone in a position akin to a landlord is novel, it hasn't been tested before by the courts."
Whakaari Management was found guilty during the judge-alone trial. It was fined $1m and ordered to pay $4.8m in reparations to all victims and their families.
In his closing statements during last year's trial, Cairney said Whakaari Management was nothing more than a landowner.
Delivering the trial decision, Judge Evangelos Thomas said the company's failure to get risk assessments exposed others to risk of serious injury and death.
Judge Evangelos Thomas at the Whakaari sentencing, 26 February 2024 on 26 February. Photo: RNZ / Marika Khabazi
"WorkSafe has established that Whakaari Management (WML) is not a passive landowner," the judge said.
"The relevant duty was for WML to ensure that the health of safety of persons it permitted to be on Whakaari was not put at risk."
He said Whakaari Management had not done proper risk assessments or engaged with experts at research institute GNS Science.
"The interaction between WML and GNS was not enough to amount to taking necessary expert advice on the risk of permitting tours on Whakaari," Thomas said.
"[It] was ad-hoc, infrequent, unstructured, informal and incomplete when much more was required."
Judge Thomas said a prior eruption in 2016, which happened at night when no tourists or workers were on the island, should have been a wake-up call.
"What should have been obvious to any Whakaari stakeholder was that any risk assessment and risk management processes in place had failed," he said.
"Whatever it thought was in place prior, it needed to stop and re-evaluate."
He said WML had not done a proper risk assessment, and therefore "failed to install facilities that would sufficiently mitigate the risk, failed to ensure that workers and tourists were supplied with appropriate personal protective equipment, and failed to ensure there was an adequate means of evacuation".
"This was a major failure and amounts to a breach of its duty under section 37 [of the Health and Safety at Work Act 2015]," he said.
It is this duty under the act that Whakaari Management is appealing.
