National | Whakaari

Bravery star for Whakaari eruption rescue but Work Safe still taking pilot to court

Mark Law beside his helicopter

Helicopter company owner Mark Law is among pilots who have just received bravery awards for their rescue effort during the Whakaari explosion in 2019.

Law, who owns Kāhu NZ, was one of the first to respond. He’s been given the New Zealand Bravery Star, a civil honour for acts of outstanding bravery in situations of danger.

But his helicopter company is still being charged by Work Safe over health and safety issues.

“I certainly don’t regret going to the island to help out a lot of people. Yeah, if it blew up now, I would go,” Law said.

Law and two crew from Kāhu NZ immediately flew to Whakaari when they heard it had erupted violently and they helped to evacuate some survivors on December 9, 2019.

Mark Law stands his ground against Work Safe charges.

From hero to zero

Of the 12 people choppered out, 10 died. The Whakaari explosion killed 22 people in total. When Law arrived on the island in his Squirrel helicopter some people were already dead. There were a few people still alive.

“They weren’t saying a lot but they were talking a little bit. [We were] rendering first aid and reassuring them we were going to help them and we started to determine who was alive,” Law said.

But Law is also one of the groups (three individuals / 10 organisations) facing charges laid by Work Safe NZ.

The eruption on Whakaari Island

Pre-eruption charges

All charges related to the health and safety measures in place before the eruption. None related to recovery or rescue efforts.

“I’m a bit disillusioned by it given we had two very good Work Safe Investigators who spent eight months investigating us. And they presented to us that in the end, they couldn’t find anything wrong with our companies.

“A short while later we were charged as a criminal. To be a criminal you need to have criminal intent and that certainly is not how I conduct myself and how our business conducts itself. And yeah, it really sucks,” Law said.

Will defend charges

He says six charges have been laid against Kāhu NZ, including failing to take care of the maintenance of a gas mask and failing to implement an asbestos plan following claims that asbestos had been detected in an old factory frequented by visitors.

Law said the mask worked fine during the rescue operation and that there was no proof of asbestos on the island and no investigation of the claims.

But Work Safe NZ told teaomā that Kāhu NZ was charged under sections 36(1)(a) and 36(2) of the Health & Safety at Work Act 2015 for health and safety failings before the eruption. Kahu NZ faced two charges, not six, and Mark Law had not been charged personally.

“The charges relate to Kāhu NZ lacking an adequate risk assessment or appropriate controls to ensure the health and safety of workers and tourists to Whakaari and ensuring adequate risk information was available to customers.”

Kahu NZ had not been charged in relation to any rescue activities after the eruption.

The charges will go to trial in 2023.

Big fine in related case 

Another business, Inflite Charters, was sentenced earlier this year on similar charges. Kahu NZ carried out a tour as part of a contract with Inflite Charters on the day of the eruption.

Inflite Charters pleaded guilty to a charge of failing to ensure the health and safety of other persons The tour organiser sold and provided trips to various New Zealand destinations.

Inflite Charters had no customers on the Island at the time of the eruption but the prosecutor alleged various failures by the defendant in the lead-up. Specifically, the firm failed to undertake adequate risk assessments or controls to ensure the safety of visitors to the Island; to monitor and review known hazards, and to ensure that adequate risk information was available to its customers.

In assessing the fine, the District Court found the company had failed to take a number of practicable steps; that the seriousness of the risk was extremely high, given that there had been warnings in the leadup to the eruption; that the defendant's conduct had failed to meet industry standards; and that the hazard was obvious and easily avoided.

The court said the starting point for a fine was $350,000, and reductions were made for a good safety record and the guilty plea. The total fine was $227,500 plus court costs of $40,000.

A petition has been launched on Law’s behalf asking the prime minister to get Work Safe to withdraw the charges.