The recent dismissal of an appeal lodged by the former Ports of Auckland CEO signals the strong approach being taken to officers who fail to meet basic statutory safety standards.
The case arose out of a fatal accident to a Ports of Auckland Stevedore in 2020 while Tony Gibson was CEO. Four years later, the District Court found Mr Gibson guilty of failing to exercise his duty of due diligence as an officer of a PCBU under section 44 of the Health and Safety at Work Act 2015 (Act).
Mr Gibson appealed the decision to the High Court, with this being dismissed after the court found there was no miscarriage of justice in the District Court decision.
Background
When Mr Gibson was found guilty by the District Court, the landmark decision brought sharp focus to officer’s duties under the Act – in this case being the CEO but also ultimately for directors.
This decision reinforced that officers have personal duties in relation to health and safety, which cannot be easily delegated to the PCBU. Further, officers in larger companies are not immune from prosecution.
Importantly, officers who are convicted under section 44 of the Act acquire a criminal conviction against their name personally, and there is no insurance cover for fines imposed (only for legal costs and reparation).
The District Court decision
Upon the finding of guilt, the District Court sentenced Mr Gibson to a fine of $130,000 and ordered that he pay $60,000 in Court costs. The District Court found that the due diligence failures by Mr Gibson made it materially more likely that workers at POAL would be exposed to risk of death or serious harm in the workplace.
The District Court, while accepting that Mr Gibson was a ‘good’ CEO, nonetheless held that the steps he had taken as the then-CEO – to provide for health and safety of the workers at POAL – did not meet all the statutory standards of due diligence required of officers under section 44 of the Act.
The Appeal in the High Court
Mr Gibson appealed the decision to the High Court, with his grounds for the appeal including:
- The District Court held too great of a reliance on Australian cases, which were founded on (slightly) different health and safety legislation.
- The lead expert for Maritime New Zealand undertook a paper-based investigation rather than being more investigatory, such as interviewing staff.
- The District Court focussed on best practice systems where the CEO has “ultimate reasonability” for “systems leadership”, which are not referenced in the Act.
- Ultimately, Mr Gibson felt that he was being made an example of, specifically noting that the Board members at POAL had not been prosecuted.
However, the High Court ultimately found on 31 March 2026 that there was no miscarriage of justice in the District Court decision, and the appeal was dismissed.
Justice Gault acknowledged that positive steps had been taken by Mr Gibson to increase safety observations and ensure workers were complying with established safe systems of work; this was not a case where Mr Gibson exercised no due diligence. However, ultimately, Mr Gibson’s actions were a departure from the standard of care expected of an officer carrying out their section 44 officers’ duties.
The High Court agreed with the District Court that the omission most directly linked to the fatality was Mr Gibson’s failure to ensure that POAL properly monitored work done on the night shift, and the failure to have additional technical controls to manage the risks associated with handling overhead loads.
It noted that, although the sentencing from the District Court was stern, it was still within the appropriate range and therefore the appeal against sentence was also dismissed.
Maritime New Zealand’s CEO Kirstie Hewlett commends the decision of the High Court, stating:
“We are pleased to see the High Court has reinforced that Mr Gibson did not exercise his due diligence responsibility to ensure the port complied with its health and safety obligations.”
The judgment in the High Court noted the “knowledge, influence, resources and opportunity to address safety gaps” that Mr Gibson possessed, and the history of safety incidents that had previously occurred at POAL, in determining this appeal.
The High Court endorsed the view that officers of large and complex organisations are required to take active steps to understand critical risks and to obtain assurance from the managers in the PCBU that health and safety systems are operating effectively in practice, even where operational responsibilities are delegated.
Some of the implications from this decision include:
- A CEO has duties both as an officer, but also as a worker for the PCBU. The test for each may differ under the Act, but ultimately, a CEO is required to take reasonably practicable steps to ensure the PCBU provides for the safety of workers.
- While a CEO may have good intentions and they have taken some reasonable steps to ensure health and safety, this is not enough to protect them from prosecution, where there are obvious other steps that should have been taken.
- A CEO can, and should, rely on the appropriate people in the management team of the PCBU to undertake the required steps to ensure health and safety of workers. Obviously, those in the health and safety team have the expertise to ensure that the PCBU is taking reasonably practicable steps.
- What is considered to be a reasonably practicable step will usually be based on fact. The test of what a reasonable CEO may consider to be reasonably practicable will assist in establishing the base level of obligation.
Outcome
The outcome of this appeal signals the strong approach that the New Zealand Courts will take to the liability of officers, both CEOs and directors, where they fail to meet the basic statutory safety standards.
Maritime New Zealand has stated that they will continue to work with organisations like WorkSafe New Zealand and the Business Leaders Health and Safety Forum to provide guidance for management to ensure they are complying with their obligations.
It will be interesting to see if this decision is appealed to the Court of Appeal.
Proposed Amendments to the Act
The Health and Safety at Work Amendment Bill (Bill) is currently progressing through Parliament and is likely to be enacted prior to the General Election in November 2026.
The Bill includes an emphasis on “critical risks,” increased certainty for duty holders and – importantly for this current discussion – clarification of officer due diligence obligations, particularly where individuals hold both governance and operational roles.
The Bill is drafted in a way to hopefully reduce confusion for PCBUs and officers, and to minimise over-compliance on duty holders, while maintaining accountability of PCBUs and officers for serious harm occurring in the workplace. How this High Court decision will be considered once the Bill is enacted is yet to be seen.
On current indications as to how this Bill will look when enacted, the clarify around the scope of the officers’ due diligence duty under section 44 of the Act, will be important. Particularly when considering an officer who holds a governance role (such as a director) as opposed to one who holds an operational role (such as a chief executive).
Any assessment of the duty of officers when determining whether there has been a breach should be considered in terms of the officer’s actual position and responsibilities in conjunction with section 44(2) of the Act.
