ID Tours has failed in its bid to get the charge it faces in the wake of the Whakaari eruption dismissed.

At a hearing in Whakatāne District Court ID Tours lawyer David Neutze argued the WorkSafe charge was 'flawed”, and that ID Tours was a 'conduit” between overseas and New Zealand-based tour operators and had no direct connection to White Island Tours.

'There is no suggestion ID Tours should have been handing out safety information,” he said.

'ID Tours' work activity ... is not the facilitation of tours on Whakaari ... rather the facilitation of bookings.

'ID Tours' work, actually, was too remote from tourists on Whakaari.”

Neutze said WorkSafe had attempted to 'blur that and merge into other parties' duties”.

However, in a written ruling released on Thursday, Judge Evengelos Thomas refused to toss the charge.

”When a tour operator deals directly with customers it has all the health and safety duties under the Health and Safety at Work Act 2015,” he said.

'It must keep workers and other people safe at the activity. It must ensure that all the right information gets to customers when they are buying a tour. It must make sure that everything is safe for them while they are transporting them to their activity site; and so on.”

Judge Thomas said that to dismiss the charge, he must be satisfied there is no case for them to answer.

'That is a different test from a trial. It is not about whether ID Tours is guilty or not guilty of the charge that it faces,” he said.

'If ID Tours gets to a trial, that is what the trial is for. That is when the evidence gets tested. For this application I must take the prosecution evidence at its highest, even if ID Tours disputes that evidence.”

Under the headline ‘Did ID Tours New Zealand Limited owe a duty to tourists on Whakaari?', Judge Thomas says simply 'yes”.

He said that while not every organisation involved in a tourism sector supply chain would have a duty under the Health and Safety at Work Act 2015, 'each situation would be fact specific”.

-Benn Bathgate/Stuff.