Ex-Port of Auckland CEO guilty of health and safety breaches

Tony Gibson, the former chief executive Officer of Port of Auckland Limited (POAL), has been found guilty of health and safety breaches in relation to the death of a stevedore on 30 August 2020. The verdict serves as a severe warning to officers of large companies of their exposure to significant personal liability under the Health and Safety at Work Act 2015 (HSWA).

Port worker Pala’amo Kalati was killed in a tragic accident after being crushed by a falling container while loading containers onto a ship at the port. Maritime New Zealand (as the relevant health and safety regulator) charged both the port company and Gibson, personally. 

The charge laid alleged Gibson failed to comply with the duty to exercise safety due diligence as an officer of the company, and therefore failed to ensure that the company complied with its health and safety duties. 

The decision

District Court Judge Steve Bonnar KC found that Gibson failed to discharge his duty to exercise due diligence, exposing workers to a risk of death or serious injury. The Judge concluded that “a reasonable CEO would have recognised the shortfalls in POAL’s management of [the key hazards when working under cranes through using] exclusion zones and would have ensured POAL utilised appropriate resources and processes to address those shortfalls”.

In particular, it was held that Mr Gibson was:

• • Fully aware of the critical risk of handling suspended loads
  • Ultimately, responsible for health and safety and was tasked with a number of key health and safety responsibilities
  • Responsible for monitoring and reviewing the performance of his subordinates and POAL’s systems. He was required to exercise systems leadership
  • “Hands on” in relation to health and safety issues
  • Aware of the lack of timely response by POAL to recommended improvements to health and safety accountability, monitoring, and reporting, including reporting of incidents, near misses and noncompliance
  • Aware, or ought to have been aware, of the lack of timely progression of bow-tie analysis of critical risks
  • On notice of POAL’s on-going difficulties in adequately monitoring work as done and of the need for improvement of the monitoring of the night shift
  • Conscious of the desirability of additional technological controls in relation to work carried out by lashers on ships, to address POAL’s reliance on behavioural controls, but failed to turn his mind to the need for additional hard, non-technological controls

Gibson could face a maximum penalty of NZ$300,000 for exposing POAL workers to risk of death or serious injury. The penalty has not yet been determined. 

The significance of this decision 

The decision is the first guilty verdict for an officer of a large company who was not personally involved in an accident. Maritime New Zealand has welcomed the guilty verdict, referencing the Pike River Mine tragedy and the need to hold those who control large companies to account when it comes to the health and safety of their workers. 

The judgment may be appealed, but it confirms that company officers and senior managers must take an active and careful role when setting and resourcing health and safety policies – the fact that they are not directly involved will not protect them from criminal prosecution.

This article was first published by Dentons. Reproduced with permission.