A tourist booking agent involved in helping cruise ship passengers visit Whakaari/White Island has lost its bid to have a WorkSafe charge - laid following 2019′s deadly eruption - thrown out.

A district court judge hearing the case also said changes in the way the tourism industry operated with supply chains meant there might be less health and safety protection for customers - something which, in his view, was not intended under health and safety laws.

ID Tours Ltd, based in Auckland, applied to have a charge it allegedly failed to ensure the health and safety of workers and others dismissed during a hearing yesterday in the Whakatāne District Court. Judge Evangelos Thomas released his decision today.

There were 47 people, mainly international tourists, on Whakaari/White Island when it erupted on December 9, 2019, killing 22 people.

Tourists are ferried off Whakaari/White Island after the eruption in December 2019. Photo / Michael Schade

Judge Thomas said when a tour operator dealt directly with customers, it had all the health and safety duties to abide by the law. Operators must ensure all the right information is given to them when they are buying a tour and must make sure everything is safe.

But the cruise and adventure tourism industry had grown significantly over the years and it was now often no longer practical for tour operators to overseethe ticketing process, transport as well as the running of tours. It had become standard practice for a supply chain model to be used which meant other entities performed some of those functions. ID Tours was one of those entities in the supply chain.

In this situation, Judge Thomas said World Caribbean Cruise Liners sold the tours to passengers, ID Tours liased between the cruise liners and Tauranga Tourism Services Ltd - which was the local agent for the tour provider White Island Tours Ltd.

Judge Thomas said ID Tours accepted it had a health and safety duty to its workers, but it had been charged with breaching that duty to tourists who made it onto Whakaari/White Island.

ID Tours, represented by David Neutze, argued its duty did not extend that far and applied to have the charge dropped. WorkSafe, represented by Kristy McDonald KC, opposed that.

Judge Thomas said it was not his role to decide whether ID Tours was guilty, but instead to rule if there was a case to answer.

He said that was what the trial was for and where the evidence was tested. He said for this application he must take the prosecution evidence “at its highest” even if ID Tours disputed the evidence.

“Did ID Tours owe a duty to tourists on Whakaari? Yes.”

He said the evidence provided by WorkSafe was that it had become common in the tourism industry to have single entities operating as part of a single chain from point-of-sale to delivery of adventure activities.

“Although that is likely due to practical operational reasons, it runs counter to the act’s purpose that a consequence of that would be less protection. I doubt that would have been Parliament’s intention.”

Judge Thomas said: “That doesn’t mean everyone in the supply has a duty under the act, each situation would be facts specific. Here, however, ID Tours is caught for the reasons I have described.”

ID Tours is one of 13 parties initially charged under the Health and Safety at Work Act 2015 following the tragedy.

Nine organisations, including ID Tours, face a charge under section 36 of the act for allegedly failing to ensure the health and safety of workers and others.

WorkSafe has also laid charges against the island’s owner Whakaari Management Limited and its directors Andrew, James and Peter Buttle; GNS Science; White Island Tours Limited; Volcanic Air Safaris Limited; Aerius Limited; Kahu NZ Limited; Inflite Charters Limited; ID Tours New Zealand Limited; and Tauranga Tourism Services Limited.

All defendants have pleaded not guilty.

The three individuals are charged under section 44 of the act, which requires directors, or individuals with significant influence over a company to exercise due diligence that the company is meeting its health and safety obligations under the act.

A charge against the National Emergency Management Agency was dropped last year.

The charges do not relate to the rescue operation after the eruption.

The four-month trial for the remaining defendants is set to take place from July 10 this year. A judge last month rejected GNS Science’s arguments for its charges to be trialed separately.

The Buttle family has owned the island since 1936.