In the newly released judgment in Gibson v Maritime NZ, the High Court has rejected an appeal against conviction by Tony Gibson, the former CEO of Port of Auckland Limited (POAL).

Mr Gibson was convicted in 2024 for breaching section 44 of the Health and Safety at Work Act 2015 (HSWA), after an investigation by Maritime NZ following the death of a worker at the port in 2020. Mr Gibson appealed, but that appeal has now failed.

There is a lot to digest, but our initial reaction is that this decision will concern many company officers, as it reinforces the onerous responsibility section 44 places upon them.

The High Court approved the District Court's conclusions that officers need to do more than simply ensure their organisation has appropriate systems in place, and that officers must go further and ensure those systems are working in practice. This should not surprise anyone.

Things get tricky when leaders need to apply this and prioritise what has to happen in complex environments where measuring performance can be nuanced and programmes for improvement by way of change can be multi-faceted and require lengthy implementation.

Gault J acknowledged that Mr Gibson had implemented many positive health and safety initiatives during his tenure at POAL, and that he was widely regarded as a committed leader. This wasn’t enough to save him from conviction. While an officer may take some – or even many - positive steps, His Honour held the key question in a prosecution is whether a reasonable officer in the same circumstances would have taken more steps in relation to any particular risk. This sets the bar high and suggests officers need to focus on implementation, monitoring, and verification for all risks, and especially for critical risks, as matters of urgency without the comfort of time to do so. If time is needed, then it will be important to consider interim changes and what can be done in the short term.

There is always a danger of judging past behaviour harshly with the perfection of hindsight, especially when the risk has been manifested with fatal consequences. In this case, however, both the District Court and High Court decided the evidence justified a conclusion that Mr Gibson could and should have done more. The evidence at trial had been voluminous, but Gault J emphasised that Mr Gibson:

• Was aware of the risks associated with suspended loads and the importance of stronger controls
• Was aware that POAL’s exclusion-zone training and documentation was confusing and inconsistently understood
• Knew POAL’s systems for safety observations were inadequate for detecting non-compliance on the night shift
• Was on notice that POAL had continuing difficulties monitoring “work as done”
• Knew critical-risk tools such as bow-tie assessments had not been progressed adequately or promptly

This was a damning combination, with inadequate systems matched by inconsistent performance. As a result, His Honour held it was open to the trial Judge to conclude Mr Gibson had not exercised the care, diligence and skill that a reasonable officer would have exercised in the same circumstances.

It will be interesting to see if Mr Gibson seeks leave for a second appeal. The stridency of his challenge to the factual findings against him, and the importance of understanding the scope of section 44 for all officers would perhaps justify a further appeal, but this is somewhat mitigated by the amendments proposed to section 44 in the Health and Safety Amendment Bill currently before Parliament. Time will tell if an appeal is lodged.

For now, two key questions for officers in other organisations to ask themselves are:

1. How do you know your critical risk controls work and are being followed in practice?
2. How can you keep workers (and others) safe while you work through any outstanding improvements your organisation needs to make?

If you'd like more information about what this decision may mean for you and your organisation, please get in touch with our team of health and safety experts.