Port of Auckland CEO on trial following death of stevedore

Former Port of Auckland CEO Tony Gibson is on trial in the Auckland District Court following the death of a stevedore at the Port in August 2020.

Mr Gibson is facing two charges, laid by Maritime New Zealand, under sections 48 and 49 of the Health and Safety at Work Act 2015. These charges concern alleged failures to comply with a duty that exposes an individual to the risk of death, serious injury, or serious illness (section 48), and failing to comply with a duty under the Act (section 49).

Under the Act, Mr Gibson, as an officer of the Port (pursuant to section 18 of the Act) had a duty to exercise due diligence to ensure that the Port complied with its duties or obligations under the Act (section 44).

If convicted, Mr Gibson could face a fine of up to $300,000 under section 48 and a fine of up to $100,000 under section 49. 

The Port was also charged following the stevedore’s death. It pleaded guilty and was fined $500,000 in December 2023.

Maritime NZ is the prosecuting authority because the work in question took place aboard a vessel while it was docked at the Port. From 1 July 2024, Maritime NZ’s jurisdiction will be expanded to include land-based activities at the Port – our discussion on this change can be found here.

Maritime NZ alleges that Mr Gibson, who resigned from his position in May 2021, did not use his "influence, power and resource" to monitor and rectify the "systemic deficiencies" in the Port's health and safety systems, particularly given the Port’s four previous convictions for similar offences since 2016. It further claims that Mr Gibson was aware of the risks and hazards faced by the frontline workers but failed to take adequate steps to eliminate or minimise them. Maritime NZ also contends that Mr Gibson was ultimately responsible for the Port's culture, which it says prioritised productivity over safety. 

The defence argues that Gibson cannot be held "criminally negligent" for the tragedy, as he was not personally liable for the failures of individual systems and staff over which he had no direct control. The defence says that Gibson delegated the operational and health and safety matters to his senior managers, who were competent and qualified to perform their duties. The defence also asserts that Gibson was proactive in developing and improving health and safety systems at the Port, and that he relied on the advice and reports of external experts and consultants.

The last issue appears to draw from a recent NSW District Court decision (SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58) where a company and its sole director were prosecuted by SafeWork NSW (the NSW equivalent of WorkSafe NZ) following an accident involving a worker and a forklift. While the company was convicted, the director was found to have met his due diligence obligations because he had taken an active interest in ensuring that health and safety compliance was attended to, that there must be a level of delegation for the managing director, that the company had a system to identify and manage health and safety and there were resources and processes in place to ensure that the system was implemented.

The prosecution of Mr Gibson is of particular interest because it is the first of its kind in New Zealand. The duties and obligations of PCBU’s have been well canvased since the introduction of the Act. However, there is limited guidance regarding officers’ duties. It will, therefore, be interesting to see what approach the court takes with respect to officers’ personal duties and obligations.