What the Gibson appeal dismissal means for health and safety officer due diligence in New Zealand – Practical Takeaways

Background: Mr Kalati’s death and Mr Gibson’s conviction

On 30 August 2020, Pala’amo Kalati was working a night shift at Ports of Auckland Limited (POAL) as a lasher. During a crane “twin-lift” operation, a third container was accidentally lifted and dislodged, crushing Mr Kalati, who tragically died as a result.

The then CEO of POAL, Mr Gibson, was charged personally as an officer under sections 44 and 48 of the Health and Safety at Work Act 2015 (HSWA). POAL is a “person conducting a business or undertaking” (PCBU) for the purposes of the HSWA.

Following a seven-week judge-alone trial in the District Court in November 2024, Mr Gibson was convicted of:

• failing to exercise due diligence (section 44); and
• exposing workers to risk (section 48).

In particular, the Court found that he failed to take reasonable steps to:

1. ensure there was a clearly documented, effectively implemented and appropriate exclusion zone around operating cranes; and
2. verify the provision of relevant resources and processes to support the exclusion zone.

On 21 February 2025, Mr Gibson was sentenced to a fine of NZD130,000 and ordered to pay costs of NZD60,000. The case is among the first in New Zealand to consider how the HSWA officer due diligence duty applies to a CEO in a large organisation with multiple layers of management.

 

Now: Mr Gibson's appeal and its dismissal.

Mr Gibson appealed his conviction and sentence. A central argument was that the case miscarried due to "focusing on an alleged need to develop best-practice systems, and a CEO having “ultimate responsibility” for “systems leadership”, concepts and obligations which are not referenced in s44 of HSWA, and thereby making Mr Gibson a proxy for POAL and its separate failings."

On 31 March 2026, the High Court dismissed the appeal. The Court was not dismissive of all the positive steps by Mr Gibson, nor suggested that as CEO he personally was expected to know the detail of how lashing was undertaken and could not place any reliance on the internal and external processes in place. However, it emphasised: 

• Mr Gibson was personally aware of the risks to stevedores working under suspended containers;
• Mr Gibson should have taken further reasonable steps to implement safer processes relating to exclusion zones. In the same circumstances, a reasonable officer would have recognised shortfalls in the management of exclusion zones and taken further steps to address them.
• During the charge period, Mr Gibson did not take steps that a reasonable officer in the same circumstances would have taken to implement an appropriate exclusion zone and to monitor and measure compliance. A safe system needed to include a means of monitoring and measuring performance.
• Mr Gibson was personally aware of the importance of POAL exploring hard controls, rather than relying solely on behavioural controls.
• Mr Gibson should have sought improved performance measures to monitor the effectiveness of the exclusion zone policy that was breached and contributed to Mr Kalati’s death.
• Social pressures within the crew contributed to safety observation systems being inadequate. Mr Gibson was partly responsible for taking reasonable steps to implement a system that monitored and measured compliance.
• Mr Gibson was on notice that POAL had ongoing difficulties in adequately monitoring compliance with procedures. He should have been aware that appropriate systems and processes needed to be put in place to address POAL’s previous failures in that respect.
• There was delay in implementing improved night shift health and safety compliance by delaying a restructure proposal to increase personnel responsible for monitoring.
• In a supervisory sense, Mr Gibson was responsible for ensuring POAL’s critical risk management tool assessments were adequate and progressed in a timely manner, which they were not.

 

Now what? Key tips for CEOs and officers

This decision is a significant development for HSWA officer due diligence in New Zealand, particularly for officers in large and complex PCBUs. Key learnings include:

1. Personal duty (not automatic proxy liability) - The section 44 officer duty is personal. An officer is not automatically liable merely because the PCBU breaches the HSWA. However, officers must still meet the “reasonable officer” standard. Do you exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances? Be aware; "reasonable does not necessarily mean the average of what others would do."
2. Due diligence requires systems and follow-through – It is important to monitor work as done together with having adequate resourcing and intention. Due diligence that is "reasonable for the most part" cannot excuse omissions elsewhere. Would a reasonable officer have taken further steps in respect of the particular critical risk?
3. Reasonable reliance must be active, not passive - Officers may rely on others, but only where that reliance is reasonable, supported by appropriate enquiry and not passive. In a critical risk area, consider challenging and following up on mechanisms or justifications that you do not understand or appear unaligned to safety audits or plans.
4. Partial due diligence is not enough - This was not a case where the officer did nothing; Mr Gibson's actions were "positive and enhanced workplace health and safety", however, the issue was that insufficient due diligence was exercised in a critical risk area he knew about. Do you have comprehensive knowledge of your business' risk areas, and understand each component of the risk profile?
5. Verification of resources and processes is essential - Officers are responsible for ensuring health and safety controls are in place, being used correctly, and resourced Verification should focus on processes and resources. An officer's responsibility includes verifying operational matters (including monitoring and measuring reports of work as done prepared by subordinates). Do you have a step-by-step verification plan that prompts verification checks at critical intervals? If so, does the plan address verification of both processes and resources?

 

Government signals: health and safety reform is proposed

Proposed reform is progressing through the Health and Safety at Work Amendment Bill (introduced to Parliament on 9 February 2026).

The Bill is intended to clarify that an officer’s duty does not extend to activities performed in another role within the PCBU, and to convert the due diligence steps into an exhaustive list to reduce ambiguity. The explanatory note states:

"…There has been some ambiguity about the extent of the duty, especially when an officer also has other roles in the PCBU, such as chief executives, owner-operators or partners. To address this ambiguity, the Bill clarifies that an officer’s duty does not extend to activities they perform in another role within a PCBU. To reinforce that an officer duty applies to governance only, the Bill changes the current open (inclusive) list of due diligence steps into an exhaustive list of the due diligence steps required to meet the officer duty, and re-expresses some of the steps."

As currently proposed, the reforms re-direct focus towards serious harm prevention and further clarify governance versus management responsibilities. Themes include prioritising “critical risks”, clarifying overlaps, Approved Codes of Practice (ACOPs) (including “safe harbour” status), clarifying notification requirements, and refocusing regulator functions (guidance/advice emphasised).

Even if reform is enacted, the principles in Gibson may arguably remain. That is, officers have a duty to exercise due diligence in ensuring organisations have clearly documented, effectively implemented, and appropriate health and safety procedures that are accompanied with appropriate resourcing and verification. That said, the changes are intended to better delineate governance obligations from operational management, which could touch on the Court's analysis that for an officer, there is currently no "brightline or meaningful distinction between taking reasonable steps in a governance or management role".

With the select committee report due on 13 June 2026, it seems plausible that the Bill may be enacted before the general election scheduled for 7 November 2026. If so, a key question will be how the reforms affect the application of the Gibson principles.