Tony Gibson Guilty in Landmark Health & Safety Case: +IMPAC's view on what it means for leaders

9 December, 2024  | 

On 27th November, the District Court found the former CEO of Ports of Auckland Ltd, Tony Gibson, guilty of charges under section 48 of the Health and Safety at Work Act 2015 (HSW Act). Section 48 is the failure to comply with a duty that exposes an individual to a risk of serious injury, serious illness, or death. The duty that was not complied with was the Section 44 duty relating to due diligence of officers.

This is the first time an officer of a larger New Zealand company has been found guilty of breaches of the HSW Act and the outcome will undoubtedly provide some clarity and/or have some implication for all officers in New Zealand, particularly those from larger organisations.

To date all successful prosecutions under the HSW Act and the previous legislation have been against officers/directors who are operating in typically smaller businesses at little, if any, distance from the coalface.

While not binding, a recent case from New South Wales, which has similar due diligence provisions to New Zealand, appeared to give some direction on the extent of that duty when the court found that the managing director being charged “cannot know everything that is going on at any given moment” and that “to run a corporation there must be a level of delegation” SafeWork NSW v Mitchell Doble [2024] NSWDC 58. The prosecution was not successful.

The judge in the Gibson case considered the NSW decision but ultimately was of the view that the case needed to be determined on its own facts. This has been an important part of the decision from a practical point of view. In the decision the judge confirmed what they considered key principles underpinning the due diligence duty including the following:

  • The extent of a duty will be dependent of facts and circumstance of each situation. This clearly includes the nature/risk of the organisation and the nature of the officers’ responsibilities within it. In large organisations this is not limited to governance or oversight.
  • While an officer does not need to be deeply involved in operations, they cannot simply rely on others either. They must gain the appropriate knowledge to satisfy themselves that the PCBU is doing what it should to manage health and safety effectively.
  • The fact the PCBU has breached a duty does not automatically mean an officer has.


It appears the judgement itself, from a practical interpretation perspective, is saying that officers must:

  • Ensure people with health and safety roles have the competence/experience to carry them out.
  • Ensure the PCBU is focusing on its critical risks.
  • Know the reality of “work as done vs work as imagined” and particularly the impact this may have on hazard and risk management.
  • Ensure effective systems and/or processes are in place to ensure the PCBU meets its duties. Especially important for larger PCBU’s.
  • Verify that those systems and/or processes are actually effective and followed.
  • Ensure information is able to flow up to officers and other senior people. Especially important for larger PCBU’s. This information also needs to reflect the “reality of work” and come from those who understand that.
  • Ensure that programmes and/or initiatives that are planned are actually implemented, and that things that are started are actually completed.
  • Ensure effective and ongoing monitoring of systems, processes and work practices.


Of further note in this case is that the court acknowledged that POAL had introduced some very good initiatives in health and safety, and Mr Gibson was an active CEO who spent a lot of time on health and safety. He and POAL, however, were on notice with POAL having had four successful health and safety prosecutions taken against them in the time he was in charge.

The courts essentially found that while a lot of good activity was being undertaken that didn’t lessen the issue that the charge focused on, namely that one particular critical risk was not being managed well – that of overhead cranes and the management of exclusion zones around them.

It is not known if Mr Gibson will appeal the decision but at this stage a layer of clarity has been provided to all officers about the likely extent of their duties.


To talk through the practical implications of this judgement with an +IMPAC Expert email ContactUS@impac.co.nz or call 0800 246 722.

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