White Island Volcano Eruption: Federal Court Judgment
Published on August 4, 2023 by Rita Yousef
On 9 December 2019, New Zealand’s White Island (also known as Whakaari) volcano erupted.
Despite a history of previous eruptions and warnings about the unpredictable nature of the volcano, tourists were allowed onto the Island and led into grave danger. They participated in a tour called “White Island Volcano Experience Cruise and Guided Exploration”. The cruise company, Royal Caribbean, and a tour company called White Island Tours, operated the tour.
Twenty-two people died and 25 others suffered catastrophic life-changing injuries.
Since that time, the victims’ quest for justice and fair compensation has spanned both Australia and the USA.
Who to sue for travel injury compensation
White Island Tours
Restrictions in New Zealand law unfortunately prevent the victims from suing White Island Tours for travel injury compensation.
There are various factors allowing victims to sue Royal Caribbean. These include:
- They were passengers aboard the vessel “MV Ovation of the Seas” as part of a cruise from Australia to New Zealand.
- Royal Caribbean advertised the White Island tour to its passengers through the company’s own promotional materials, which included Royal Caribbean branding.
- Passengers were allowed to book the tour directly through Royal Caribbean.
- Royal Caribbean-branded tickets were issued to tour participants.
- Royal Caribbean staff coordinated and attended the tour, along with staff from White Island Tours.
Compensation: What does it include?
Generally, the aim of travel injury compensation in this instance is to restore a victim’s position as far as possible back to what it was before the eruption.
Examples of entitlements that may arise from this tragedy include:
- Of the injured victims:
- For their losses and suffering caused by their injuries (both physical and psychological/psychiatric injuries)
- Of the families of those who lost their lives:
- For their losses arising from no longer being able to depend on their loved one for financial support and services.
- For their losses and suffering arising from psychological/psychiatric injuries caused by the passing of their loved one.
The losses that are considered include such items as past and future lost wages, treatment expenses and care/assistance needs, as well as pain and suffering.
Several of the White Island victims have commenced court proceedings against Royal Caribbean, both in Australia (Federal Court of Australia), and in the USA (Circuit Court of Florida).
Even though many victims were Australians who were touring the Island as part of their Royal Caribbean cruise, they have commenced cases in the USA alleging they are entitled to sue the cruise company in the USA under Florida law. Among other things, this is because Royal Caribbean’s head office is based in Florida.
Suing under Florida law is advantageous as the compensation entitlements are significantly higher than those under Australian law. In addition, the Florida system allows for procedural benefits, including jury trials.
Royal Caribbean says Australian law applies to the cruise contracts that the passengers entered and therefore, the proceedings in Florida are invalid. Royal Caribbean claims that the Circuit Court of Florida is not the correct court. Royal Caribbean has opposed the cases commenced in the Circuit Court of Florida. The court has not yet determined this question.
Federal Court of Australia
Following Royal Caribbean’s opposition to the court cases in Florida, the victims commenced court proceedings in Australia, in addition to the USA. This is to ensure they can pursue compensation in Australia, if they are not permitted to proceed with their cases in Florida. The Australian court cases are being heard by the Federal Court of Australia.
It was crucial that the Australian proceedings were commenced in court by 9 December 2022 (the three-year anniversary of the tragedy), as there is a strict 3-year limitation period.
The victims commenced their cases in the Federal Court and requested that the court put their cases on hold while they await the Florida court’s decisions.
In June 2023, Justice Jackman decided that the victims are permitted to put their Australian court proceedings on hold, while they wait for the finalisation of their cases in the USA. Justice Jackman considered such factors as the following in coming to his conclusion:
- The fact that the USA proceedings were commenced before the Australian proceedings;
- The significant amount of work already completed in the USA proceedings;
- The public interest and avoiding a situation where Australian court resources are wasted if the USA proceedings are allowed to continue;
- Fairness to all parties involved.
Lessons and practical tips
The White Island volcano tragedy highlights the need for specialised and timely legal advice in circumstances where people are injured overseas while travelling. Various factors are crucial to determining the applicable law and therefore the strict time limits that apply, as well as the nature of the travel injury compensation entitlements. It is critical to seek legal advice immediately.
Travellers are encouraged to be vigilant when making travel plans. This includes checking and following all travel warnings. This also includes becoming familiar with the background details behind bookings, including for example, who is organising a tour and who is conducting it.
Contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you need assistance with a travel injury compensation claim.