Landmark Conviction: Appeal Dismissed a “Wake-up Call” for PCBU’s

Monday May 4, 2026 12:26

In this edition we examine the recent High Court case covering the appeal of former Ports of Auckland Chief Executive Tony Gibson. The High Court upheld Gibson’s earlier conviction under the Health and Safety at Work Act, which resulted in a $130,000 fine and an order to pay $60,000 in costs. The prosecution followed the death of 31-year-old  Pala’amo Kalati, a lasher who was killed by a falling container at the port in August 2020.

The Court dismissed the appeal, upholding the District Court’s finding that Mr Gibson failed to exercise due diligence as an officer under section 44 of the Act. Section 44 of the HSAW Act covers the Duty of officers.  Specifically, Section 44 Sub clause 4(b) states: “to gain an understanding of the nature of the operations of the  business or undertaking of the PCBU and generally of the hazards and risks associated with those operations”…
The decision confirms that all officers of organisations must exercise due diligence and take active, reasonable steps to understand critical risks and to verify that health and safety systems are functioning effectively in practice. 

While acknowledging Mr Gibson took an active part leading health and safety  who introduced a number of positive safety initiatives, they were not relevant in determining whether other steps should have been taken.  In the same circumstances, a reasonable officer would have recognised shortfalls in POAL’s management of exclusion zones and taken corrective and preventative actions to address those shortfalls.

In short, it is not enough to just have health and safety systems in place, to have formal audits, check lists and statistical charts.  Reliance on H&S certifications and compliance to the various pre-Qual schemes will also not provide the confidence that controls on critical risks are appropriate and effective.

You have to know what is going on within your organisation in all places and as far as possible at all times.  The risks of hazards in the workplace require to be identified, assessed and controlled to the extent that they are either eliminated or potential harm is mitigated to an acceptable level.

People exclusion zones where cranes operate was an established system at the Ports of Auckland and when cranes were in use the rule was that no one was allowed to enter or work in an exclusion zone. At the time of the incident, it was reported that night shift workers were within an exclusion zone around an active crane, contrary to Port policy.

As the incident occurred on a vessel berthed at the Port, Maritime New Zealand, rather than WorkSafe New Zealand, pursued the prosecution.

This decision is a “wake up call” for all PCBUs and clarifies the duties and obligations for all organisations.

If you have any concerns about where you and your business stand in this matter and the possible impacts, then we suggest you share these with your Securo consultant at his or her next visit.  Your Securo consultant will be able to provide a thorough risk assessment of possible hazards in your workplace; the necessary controls to manage them and work with you and your team to ensure they are closely monitored.

We can also advise on hazard management, risk assessment and provide access to specialist health professionals for health monitoring services.

So please give them a call or alternatively contact Securo head office on 0800 55 33 44.

Parts of the information in this newsletter has been derived from guidance documents published by WorkSafe NZ which are available at www.WorkSafe.govt.nz, Ministry of Business and Innovation (MBIE) and parts of the Health and Safety At Work Act – 2015.