WorkSafe New Zealand v Buttle [2022] NZDC 20694 – Whakaari White Island directors fail to have charges dismissed

The substantive hearing of the Health and Safety at Work Act 2015 (HSWA) charges against 10 organisations and three individuals in relation to the Whakaari White Island eruption is due to be heard in nine months.

In the June 2022 issue of Navigate we reported on the District Court decision to dismiss charges against the National Emergency Management Agency (NEMA) in relation to the Whakaari White Island eruption on the grounds that NEMA did not owe a duty under s36(2) of the HSWA, to identify the risks to visitors and tour operators on the Whakaari White Island from volcanic hazards. At the time we agreed with the finding that the duty under the HWSA not to put other persons at risk from work should not extend to faulty work product.

The directors of Whakaari Management Ltd, the private company associated with the family ownership of Whakaari White Island, Andrew, James and Peter Buttle recently applied to have the charges against them dismissed.

The allegations against them set out in the charging documents were that the Buttles had failed to take the following reasonable steps:

1. To acquire and keep up-to-date knowledge of work, health and safety matters.
2. To gain an adequate understanding of the hazards and risks associated with the PCBU permitting access to Whakaari.
3. To ensure that the PCBU had available for use and used appropriate resources to eliminate or minimise risks to health and safety from the PCBU permitted to Whakaari.
4. To ensure that the PCBU had and implemented a process for complying with its duties or obligations under s36(2) and/or s37 of the HSWA.

The wording of the particulars in the charge was drawn directly from the statutory language in s44(4) of HSWA.

The arguments raised by the Buttles was that the charge did not contain sufficient particulars to fully and fairly inform them of the substance of each of the allegations that they faced. They claimed that the charge should identify what the reasonable steps were that they had failed to take, as it was those steps that were the very “pith and essence” of the charge. They relied on the decision in WorkSafe New Zealand v Talleys Group Ltd,¹ where charges were found to be defective for lack of adequate particulars.

The Buttles sought to have the charges dismissed on the basis that:

1. the charging documents are defective and incapable of being remedied and as such were a nullity; and
2. that continuing the proceedings, given the way the charging documents were drafted, was an abuse of process.

The Judge disagreed. He declined to dismiss the charges, finding that they were not deficient. He noted that even if they were defective, principles of fairness would have allowed for them to be rectified, particularly given that the hearing was nine months away.

The following factors were cited by the Judge in support of the finding:

1. Whether or not a charging document is adequate will depend upon the individual circumstances of the case.
2. Whilst there have been cases that have held that charges taken directly from the wording of the HSWA are inadequate, they generally related to charges against PCBUs. In this case the Buttles had not been charged as the PCBU, the primary duty holder, but were charged in their capacity as directors.
3. Charges against directors still need to have enough in them to identify the essence of the charge, how much is needed will vary from case to case and will be fact based.
4. In this case, the charge relates to the failure by the Buttles to exercise due diligence, as opposed to breaching a primary duty of care. The Judge found that this was one step removed from the incident or the activity that has resulted in the accident or harm and as such placed them at a more strategic level of responsibility.
5. The charge was not that the Buttles took some steps but not others, it was that they had failed totally in their duties under the HSWA. This complete lack of action was the essence of the charge against them and required no further particularisation. It was simply for WorkSafe to prove that no steps had been taken.
6. The Talleys decision was not authority for the proposition that the use of statutory language in a charge is automatically defective or that failure to particularise every reasonable step that may be the subject of the prosecution case will render a charge defective.

The decision confirms that use of the statutory wording and lack of particularisation will not necessarily result in the dismissal of charges in every case. The facts of the case, the nature of the charge and the role of the defendant are all factors that will be taken into account by the Court.

1. [2018] NZCA 587, [2019] 2 NZLR 198.

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