If you're a director or officer of a New Zealand organisation, this decision is required reading: the High Court has confirmed that your health and safety duties are personal, non-delegable, and held to a high standard, regardless of the size or complexity of your organisation.

In this article we discuss the implications of the High Court’s decision on the appeal brought by former Ports of Auckland chief executive Tony Gibson against his conviction under the Health and Safety at Work Act 2015 (Act). 

Background to the prosecution

The proceedings arose from a fatal incident at the Ports of Auckland in August 2020, in which stevedore Pala’amo Kalati was killed after being crushed by a falling container during a lifting operation on a berthed vessel. At the time of the incident, workers were operating within an exclusion zone around an active crane, contrary to port policy.

Maritime New Zealand investigated the incident and brought charges against both Ports of Auckland Limited (POAL), as a PCBU, and Mr Gibson personally, as an officer of the PCBU. Maritime New Zealand, rather than WorkSafe New Zealand, had regulatory jurisdiction because the incident occurred on a vessel. 

The District Court decision

In November 2024, the Auckland District Court found Mr Gibson guilty of failing to exercise due diligence as an officer under section 44 of the Act, exposing workers to a risk of death or serious injury and constituting an offence under section 48.

The decision was significant because it was the first time a chief executive of a large and complex New Zealand organisation had been convicted for a breach of the officer due diligence duty. The District Court accepted that Mr Gibson was an engaged and conscientious chief executive and that he had introduced a number of health and safety initiatives. However, it held that these steps did not meet the statutory standard of due diligence in the circumstances. 

The District Court’s reasoning emphasised governance level obligations, including the need for senior leaders to ensure that critical risks are clearly identified, that controls are effective in practice, and that assurance processes provide meaningful insight into work as actually done.

Mr Gibson was later sentenced to a fine of $130,000, with $60,000 in costs. 

You can read our previous article on the District Court decision here. 

The appeal

Mr Gibson appealed his conviction and sentence to the High Court, challenging the District Court’s interpretation and application of the officer due diligence duty in the context of a large organisation. The underlying theme of the appeal was the concerns that Mr Gibson had been “singled out” for prosecution, noting that Maritime New Zealand did not charge the other port (non-executive) Board members or other senior managers who also had health and safety responsibilities.  

High Court decision

In a judgment delivered on 31 March 2026, Justice Gault dismissed the appeal, confirming the District Court’s approach to officer due diligence under the Act. In doing so, the High Court endorsed the view that officers of large and complex organisations are required to take active steps to understand critical risks and to obtain assurance that health and safety systems are operating effectively in practice, even where operational responsibilities are delegated.

The decision reinforces the District Court’s emphasis on governance level oversight and confirms that an officer’s good intentions, or the presence of formal systems and policies, will not be sufficient if those systems do not translate into effective risk control on the ground.

Key observations from the decision include that:

1. No brightline distinction between taking reasonable steps in a governance role and a management role: Under the Act, the term “officer” covers both directors and persons who exercise significant influence over management, such as a chief executive. A CE’s role may straddle both governance and management, and the officer’s responsibility extends to taking reasonable steps to implement and monitor (and improve where necessary) health and safety systems. 
2. Positive steps and good intentions relevant, but not determinative: The Court accepted that Mr Gibson took numerous positive steps - including expanding the health and safety team, introducing PortSafe, establishing a Health and Safety steering committee, and engaging external auditors. But reasonable conduct “for the most part” does not excuse unreasonable conduct in another part. The key question is whether a reasonable officer in the same circumstances would have taken further steps. 
3. “Hands on” approach to health and safety not to be held against an officer: The Court held it would be contrary to the purpose of the Act to allow a CEO who remains remote from operations to avoid responsibility, while holding a more engaged chief executive to a higher standard. 
4. Officer may reasonably rely on subordinates and advisors, but such reliance must be reasonable: An officer cannot assume a PCBU is compliant in the absence of being told otherwise - officers must take proactive steps to understand health and safety “on the ground”. 
5. Reasonable steps in a governance role “does not mean perfect”, and the standard is not one of best practice: Nor does “reasonable” necessarily mean the average of what others would do. Common practice may or may not involve sufficient reasonable steps. 

Legislative context: Health and Safety at Work Amendment Bill

The appeal has been determined against the backdrop of significant proposed reform to the health and safety regime. In February 2026, the Government introduced the Health and Safety at Work Amendment Bill, which seeks to clarify areas of uncertainty that have emerged since the Act came into force.

Key themes of the Bill include a sharper focus on “critical risks”, increased certainty for duty holders, and clarification of officer due diligence obligations, particularly where individuals hold both governance and operational roles. The Bill is expressly intended to reduce confusion and over compliance, while maintaining accountability for serious harm. 

The High Court’s decision will need to be read alongside these proposed reforms if enacted. Notably, the Bill seeks to clarify the scope of the officer due diligence duty, particularly where the same individuals holds both a governance role (such as a director) and an operational role (such as a chief executive or manager). This mirrors the Court’s findings that there is no bright-line distinction between governance and management roles under section 44, and that the duty must be assessed in light of the officer’s actual position and responsibilities and section 44(2). If the Bill is passed in its current form, it may provide further statutory certainty around the boundaries of the officer duty. 

Why this matters

Regardless of the outcome of the appeal, the Gibson litigation highlights the increasing scrutiny on officer conduct and the practical expectations placed on senior leaders in relation to health and safety governance. 

While this case only involved the CE, Justice Gault made clear that “multiple people including Board directors and managers at POAL had health and safety responsibilities” and that while Maritime New Zealand chose not to charge Board members in this case, it could have done so. This observation will be of some discomfort to non-executive officers with Justice Gault effectively putting all Board members on notice of their personal, non-delegable, duty to exercise due diligence and the potential liability for failing to take “reasonable steps” to ensure their organisation complies with health and safety obligations.  

The High Court’s decision will sit alongside the proposed legislative reforms and will be relevant to how organisations, boards, and officers approach risk oversight, assurance, and accountability going forward.

Special thanks to Mathew Barnett, Senior Solicitor, and Clara Evans, Solicitor, for their assistance in writing this article.