No hiding at the top: High Court upholds conviction of former Port of Auckland CEO for health and safety failures

If you are a senior executive of a large organisation, you cannot delegate away your health and safety responsibilities. Officers of a person conducting a business or undertaking (PCBU), being individuals who occupy a position allowing them to exercise significant influence over the management of the PCBU (such as directors and chief executives), must exercise their due diligence duty to ensure that a PCBU is itself meeting its health and safety obligations.

In dismissing Tony Gibson’s Appeal against his conviction and sentence, the High Court has sent a clear message: knowing about health and safety risks is not enough. If you are an officer, you must verify those risks are being managed “on the ground”.

What happened in the original District Court decision?

A worker at the Port of Auckland, Mr Pala’amo Kalati, died when a shipping container fell on him while working on the MV “Constantinos P”. Following a seven-week trial in the Auckland District Court, Mr Gibson was convicted of failing to exercise due diligence as an officer of Port of Auckland Limited (POAL) giving rise to a risk of serious injury or death under s 44 and s 48 of the Health and Safety at Work Act 2015 (HSWA).

The Court held that there was a failure to:

1. take reasonable steps to ensure that there was a clearly documented, effectively implemented, and appropriate exclusion zone around operating cranes;
2. take reasonable steps to verify the provision of the relevant resources and processes specified above.

Mr Gibson was responsible for health and safety matters at POAL at the “Executive” level and was delegated authority by the Board to implement its health and safety policy. However, there was a failure to adequately manage critical risk controls, and reporting on employee practices did not convey enough information to Mr Gibson or the Board to satisfy them that the risks were being addressed.  That gap between knowing there are risks and verifying they are managed was central to the finding of liability.

Mr Gibson was sentenced to a fine of $130,000 and ordered to pay costs of $60,000.

What does this mean for officers in large organisations?

Historically it has been understood that, while officers cannot absolve themselves of their responsibilities, the way in which they discharge those responsibilities may differ in a larger organisation where delegation is a practical necessity - with more reliance placed on governance and oversight rather than direct operational control.

The 2024 decision indicated a shift in that view, demonstrating that the due diligence obligation of officers in large organisations is not just limited to governance or oversight functions. This means that officers who have roles in a PCBU that involve more than governance (including directors and others with significant influence over management) will be expected to bring due diligence to those activities.

In short, if you have real influence over how the business is managed, as a director or senior executive, you are expected to verify that health and safety obligations are being met on the ground, not just take comfort from high-level reporting.

What did the High Court decide on appeal?

In dismissing Mr Gibson’s Appeal to the High Court, the Court acknowledged that he had implemented many positive health and safety initiatives at POAL.  However, this could not excuse certain omissions made where a reasonable officer would have taken further steps.

For officers, the lesson is clear. A strong health and safety culture is not a defence if there are gaps in implementation that a reasonable officer should have caught and fixed.

How do the Government’s recent announcements and proposed amendments factor into this decision?

While the Appeal was determined under the current HSWA framework, it also sits against the backdrop of the Health and Safety at Work Amendment Bill introduced in February 2026, which proposes greater clarity around officer due diligence duties, including where governance and operational functions overlap. If enacted, those reforms may provide further statutory guidance consistent with the Court’s emphasis on assessing an officer’s duties by reference to their actual role and responsibilities.

What is the key take-home point from this case?

The decision highlights that, for officers of a PCBU, due diligence is not satisfied by having a generally sound health and safety framework on paper. Officers must actively ensure that critical risk controls are clearly defined, properly implemented, and genuinely verified in practice, especially where they know the risk is acute and the business is relying on frontline behaviour to manage it.  This case is a reminder that these obligations exist no matter how large or complex an organisation may be.