Cruise Tour Tragedy in White Island Volcano Eruption: Who is Accountable to Injured Australians?

Cruise tour passengers from Royal Caribbean’s Ovation of the Seas have been killed and injured in the White Island volcano eruption, but compensating the victims of this tragedy falls on complex legal terrain.   

Devasting news emerged from New Zealand on Monday that 38 cruise passengers from Royal Caribbean’s Ovation of the Seas were amongst the dead and injured following the White Island volcano eruption.  The injured cruise passengers, of which 24 are Australian, were on a Royal Caribbean shore tour whilst the vessel was docked in Tauranga on New Zealand’s north island.

The tour

The shore tour was sold by Royal Caribbean as an official ‘Shore Excursion’ entitled ‘White Island Volcano Experience and Guided Exploration’.  Royal Caribbean advertised the excursion as ‘an unforgettable guided tour of New Zealand’s most active volcano’. However, it appears that the tour was provided by a local tour company, White Island Tours.

The tour has since been withdrawn from Royal Caribbean’s website.

Volcanic activity

The volcano on White Island is New Zealand’s most active. On 18 November 2019 the Volcanic Alert Level was raised to Level 2. This is the highest level without an eruption but with ‘potential for eruption hazards’ according to New Zealand’s GeoNet.

Level 2 was last confirmed on 3 December when GeoNet Duty Volcanologist noted activity ‘regularly throwing mud and debris 20-30 metres into the air above the vent’.

The victims

The injured cruise tour passengers of the White Island volcano eruption have been reported as being aged between 13 and 72. Australians made up the highest proportion of victims, standing at 24.  Next were 9 from the United States.  Other nationalities include Britons, Germans, Chinese, Malaysians and New Zealanders.

Victims suffered predominantly burn injuries and have been taken to various specialist burns units.  Six people have been confirmed dead, with eight currently still missing.  However local police have stated that there are no signs of life on the island.

Accountability

New Zealand police are investigating the tragedy on behalf of the coroner.  In addition, WorkSafe New Zealand, the health and safety regulator and administrator of Adventure Activity Regulations, is conducting its own enquiry.

The families of the deceased have suffered an irreplaceable loss.  However, losing a loved one can cause financial stress as well as grief.  The nature of the burn injuries of the survivors is also likely to cause long term medical and psychological needs, in addition to time off work and pain and suffering.  Are these victims able to claim any compensation?

Accident Compensation Corporation (ACC). 

Regardless of whether a party is found to be negligent, it is not possible to sue for compensation under New Zealand law.  This is because New Zealand abolished personal injury law in favour of a statutory no-fault compensation body called the Accident Compensation Corporation (ACC).  The ACC covers everyone who is killed or injured in an accident in New Zealand regardless of whether anyone was at fault.  However, it generally only covers victims’ costs in New Zealand.  Once an injured foreign visitor returns to their home country, their entitlement stops.

This leads to the New Zealand and foreign victims of the White Island tragedy having differing entitlements under the ACC scheme.  Injured New Zealanders will have their medical treatment arising from the volcano blast paid for life, but the foreign tourists will have to fund their own medical treatment once they arrive back home.  New Zealanders will also be entitled to loss of earnings payments and financial support with domestic tasks and childcare.  This support will not be available to the injured foreign visitors.

In the case of the families of the fatally injured, New Zealanders are entitled to weekly payments to compensate the household’s lost income, along with childcare payments.  These payments are not available to the families of international tourists who died in the White Island tragedy.

The ACC scheme therefore leads to a severe imbalance between how New Zealand and foreign victims of the White Island tragedy will be treated.

Suing in Australia

Although suing in New Zealand is not possible, the injured cruise passengers and families of the deceased may be able to sue for compensation under Australian law depending on how they booked the cruise and most importantly the shore tour.

Under the Australian Consumer Law, service providers guarantee to customers that the service will be provided with due care and skill, be fit for purpose, and achieve an expected result.  This guarantee extends to services provided outside Australia, including in New Zealand.  A service provider’s ability to reduce these guarantees by getting customers to sign waivers is also restricted.

Passengers and their families may also have contractual remedies available to them.

Expert Comment

Victoria Roy, Travel Law Practice Group Leader at Stacks Goudkamp, is a personal injury lawyer specialising in claims for injured cruise passengers.  She commented:

“My heart goes out to the victims of the White Island tragedy and their families.  The horror they have been through is unimaginable.

 I welcome the investigations that have been announced by the New Zealand authorities.  I also commend the efforts made by Royal Caribbean to support the effected families.  However questions must be asked as to whether Royal Caribbean and White Island Tours were at fault for taking cruise passengers on the ill-fated shore tour in light of volcanic conditions. In the aftermath of this disaster, lessons must be learnt, as the safety of cruising and shore tours is of paramount importance.

The fact that this disaster occurred in New Zealand highlights the shortfalls of the ACC scheme to foreigners injured whilst visiting New Zealand.  However the cruise tour passengers should remember that it may be possible to bring a claim in Australia to compensate them for their losses”.

Ms Roy’s team currently represents a number of the Australian cruise excursion passengers in litigation for the injuries suffered in the Pacific Dawn bus crash in Vanuatu in 2016.  Ms Roy has successfully obtained compensation for countless cruise passengers injured both onboard vessels and during shore excursions during her career both in the UK and Australia.

We can help

Stacks Goudkamp urges any of the injured Ovation of the Sea passengers and their families to seek specialist legal advice as soon as possible.  The laws relating to accidents that occur during cruises and overseas are complex and often involve short deadlines.  Any injured passengers and the families of those who were tragically killed are therefore urged to act quickly to get advice on their circumstances and protect their rights.

Written by Victoria Roy

Victoria Roy is Practice Group Leader of the Travel Law Group at Stacks Goudkamp. She is a dual qualified (England and Wales/NSW) personal injury solicitor and acts for Australians injured on cruises, aircraft and overseas.