In Gibson v Maritime New Zealand [2026] NZHC 813 the High Court has upheld the conviction of the former CEO of Ports of Auckland Ltd (POAL), Tony Gibson. Mr Gibson had been convicted of failing to exercise due diligence to ensure POAL complied with its obligations 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.
Justice Gault upheld both the conviction and sentence imposed in the District Court, providing important guidance on the scope of officers’ due diligence obligations. It is a decision of high relevance to all officers (including directors, partners, trustees, chief executives and other senior leaders).
Background
Mr Pala'amo Kalati was a stevedore at the Port of Auckland. On 30 August 2020, he was tragically killed when a shipping container fell on him while he was “lashing” (securing one container to another and connecting containers to the deck of a ship). The tragic factual background has been explained in more detail in our previous notes on the conviction and sentence.
Maritime NZ brought charges against both POAL, as the person conducting a business or undertaking (PCBU), and against Mr Gibson personally as an “officer” under the HSWA. POAL pleaded guilty to two charges and was fined $561,000 plus $90,000 in costs.
Mr Gibson defended the charges. Following a seven-week trial in the District Court, he was found guilty on one charge of failing to exercise due diligence under sections 44 and 48 of the HSWA. Specifically, Judge Bonnar KC found that Mr Gibson failed to take reasonable steps to ensure that there was an effective exclusion zone around cranes and to verify use of the relevant resources and processes. Mr Gibson was fined $130,000 and ordered to pay costs of $60,000. He appealed his conviction and his sentence.
Conviction appeal
Mr Gibson appealed his conviction on multiple grounds, arguing that the trial Judge had conflated the separate duties of the PCBU and those of the chief executive as an officer, had applied hindsight reasoning, and had set the standard of care too high.
Justice Gault confirmed that section 44 of the HSWA requires an evaluative factual assessment. The test is whether the director / executive exercised “the care, diligence, and skill that a reasonable officer would exercise in the same circumstances”, taking into account the nature of the business and the director / executives' actual position and responsibilities.
Justice Gault largely upheld the trial Judge’s factual findings, including that: Mr Gibson was personally aware of the critical risks associated with stevedoring and handling loads; POAL’s training materials and documentation regarding the exclusion zone were confusing and inconsistent; performance monitoring was inadequate to detect non-compliance with the exclusion zone rule, particularly on night shifts; and Mr Gibson was “on notice” of issues with lasher non-compliance following a previous fatality in 2018.
In those circumstances, the Court found that a reasonable chief executive in Mr Gibson's place would have taken further steps to address the identified shortcomings in POAL’s systems.
Sentence appeal
Mr Gibson also appealed his sentence, arguing that the fine of $130,000 and costs of $60,000 were manifestly excessive. Justice Gault confirmed that the culpability factors from Stumpmaster v WorkSafe New Zealand – the guideline judgment for sentencing PCBUs – can be adapted for use when sentencing directors and executives. The assessment must be directed at what the individual director or executive should have done to ensure the PCBU’s compliance, not at the PCBU’s failings directly.
The Court found that the starting point of $140,000 was “stern” but not outside the appropriate range. The $10,000 discount for prior good character, while “not generous”, was also within range. Regarding costs, the Court noted that this was a test case of significant public interest and that Mr Gibson had run a not-guilty defence. The costs award of $60,000 was upheld as appropriate. The overall packet of sanctions ($190,000) was not manifestly excessive.
Key takeaways for directors and executives
The High Court has confirmed key principles about due diligence, that directors and executives need to follow. These will not be news to many directors and executives, but their importance has been reiterated.
- 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 inquiry
While directors and executives can rely on health and safety advisers or other experts, they cannot “simply” rely on others or on assurances that systems are working. Justice Gault confirmed that directors and executives must challenge the information they receive, where necessary, and ensure verification mechanisms are in place. - Perfection is not required, but good conduct does not excuse specific failings
The Court recognised that Mr Gibson took many positive steps during his tenure. Nevertheless, the Court considered that other steps would have been reasonable. Justice Gault endorsed the comment by the District Court that “a good leader and a conscientious officer may have the best intentions in the world but may still breach” their due diligence duty. - Industry practice is relevant but not determinative of the test
Reasonableness is to be determined by reference to both the nature of the business, the position of the individual, and the nature of 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).
Conclusion
Gibson v Maritime New Zealand provides the most recent and authoritative guidance on the scope of directors' and executives' due diligence obligations in large, complex organisations under the HSWA. The core message from this case is clear: directors and executives must actively understand their organisation’s risks and health and safety systems. Attending board meetings and receiving reports is not enough. They must be proactive in identifying and addressing critical risks and must satisfy themselves – through robust verification processes – that work is being done safely on the ground. That message will remain applicable despite the proposed tweaks to due diligence obligations signalled in the Health and Safety Amendment Bill.