Former Port of Auckland Limited (POAL) chief executive Tony Gibson has lost his appeal in the High Court against his conviction and sentence as an officer under the Health and Safety at Work Act 2015 (HSWA). This was the first conviction of a director or executive of a large New Zealand company under s 44 of the HSWA, which imposes personal accountability on directors and executives for workplace safety.Members will recall Maritime NZ laid charges against both POAL and Gibson after Pala’amo Kalati, a lasher, was struck and tragically killed in August 2020 by a falling container on board a vessel berthed at the port. POAL pleaded guilty to having failed to protect the safety of workers in allowing Kalati and a workmate to work near a crane and having failed to develop a safe system of work for lashers working around cranes.
In November 2024 in the Auckland District Court, Mr Gibson was found guilty on one charge after a judge-alone trial and was fined $130,000 and ordered to pay costs of $60,000. He was found to have failed to meet his due diligence obligations as an officer by failing to have taken reasonable steps to ensure there was a documented and effectively implemented exclusion zone around operating cranes, and to have verified that this process was happening
In effect, the High Court has simply supported the lower court’s finding: that despite all his other acknowledged efforts to improve health and safety, Mr Gibson dropped the ball on exclusion zones around cranes.
The High Court has confirmed key principles about due diligence, that directors and executives need to follow.
Systems are not enough – directors and executives must know that systems are effective and being followed
Systems that look good on paper are not enough. Directors and executives must implement systems that monitor and measure compliance and must understand the "work as done" rather than work as planned to be done.
Directors and executives cannot rely solely on subordinates without proper enquiry
Directors and executives cannot “simply” rely on health and safety advisers, others or assurances that systems are working. They must challenge the information they receive, where necessary, and ensure robust verification mechanisms are in place.
Perfection is not required, but good conduct does not excuse specific failings
Justice Gault endorsed District Court comment that “a good leader and a conscientious officer may have the best intentions in the world but may still breach” their due diligence duty by not taking all reasonable steps.
Industry practice is relevant but not determinative of the test
Reasonableness is determined by reference to the nature of the business, the position of the individual, and their responsibilities. The approach of others in similar positions is relevant to understanding what a reasonable director or executive would do but is not determinative. Benchmarking practices, particularly in similar operations, is therefore helpful (although practices may be deficient across the industry).
To conclude, directors and executives must be proactive in identifying and addressing critical health and safety risks and must satisfy themselves that work is being done safely on the ground. This will continue to be the case, despite planned amendments to the Health and Safety Act.