Why “doing a lot” still wasn’t enough: New Zealand High Court upholds landmark officer due diligence conviction

By Katherine Morris & Melissa Carnell on May 13, 2026

This article was co-authored with Arabella Cull.

Case update: Anthony Michael Gibson v Maritime New Zealand [2026] NZHC 813

Introduction

On 31 March 2026, the High Court of New Zealand (HCNZ) dismissed the appeal of Anthony Gibson, the former CEO of Ports of Auckland Limited (POAL), and upheld his conviction and sentence by the District Court of Auckland (DCA) for failing to exercise due diligence as an officer under the Health and Safety at Work Act 2015 (NZ) (HSWA). The case arose from a safety incident that occurred on 30 August 2020 where a POAL worker, Mr Pala’amo Kalati, was fatally crushed when a suspended shipping container fell from a crane. This is an important decision which reinforces the due diligence obligation of officers in Australia and New Zealand to take “reasonable steps” to ensure that their organisation is meeting its statutory safety duties.

DCA findings

See our WHS Briefing February 2025 and WHS Briefing July 2025 for a summary of the liability and sentencing decisions involving Mr Gibson¹. Mr Gibson was found guilty by the DCA of breaching the officer due diligence obligation under the HSWA in November 2024, and subsequently sentenced in February 2025, where he was fined $130,000 (from a maximum penalty of $300,000) and ordered to pay $60,000 towards the costs of the prosecution.

The HCNZ findings

Appeal against his conviction

A key theme raised by Mr Gibson during the appeal was that he was a dedicated and “hands on” CEO in relation to health and safety, who was genuinely committed to staff safety, and who should otherwise be taken to have complied with his due diligence obligation. He argued that the “expansive” health and safety systems at POAL (including people, resources, and processes) were evidence that he and other officers at POAL were exercising due diligence.

Specific grounds raised by Mr Gibson during the appeal in relation to his conviction included the following:

That the DCA focused too greatly on the failures of POAL (and the officer duty is distinct from the PCBU duty).
The Board, rather than Mr Gibson, was ultimately responsible for safety at POAL.
The due diligence obligation does not rely on attribution, but rather, whether Mr Gibson acted as a reasonable officer would have acted.
The DCA incorrectly considered Australian due diligence cases, including Doble (which the prosecutor argued was wrongly decided) (Doble involved an unsuccessful prosecution of an officer in NSW – see our update here).
The DCA erred in law by setting the standard too high – due diligence requires taking reasonable steps to ensure, rather than actually ensuring, the PCBU’s compliance.
The DCA ignored the defence’s evidence that Mr Gibson’s actions were in line with, if not ahead of, equivalent officers during the charging period, at a time when health and safety management and governance were evolving.

Reading the judgment as a whole, and in context, the HCNZ did not agree that any errors had been made by the DCA in determining Mr Gibson’s guilt in relation to the offence.

The HCNZ determined that the DCA was entitled to find that Mr Gibson had not exercised the care, diligence, and skill that a reasonable officer would have exercised in the same circumstances, referring to the following:

Mr Gibson was personally aware of the risks to workers working under suspended loads and the need for additional controls to be put in place.
POAL’s training and materials in relation to a three-container width exclusion policy was confusing, inconsistent and workers had different understandings of the operation of the rule. Further, there was significant non-compliance with the policy, particularly on night shift. While it was not Mr Gibson’s personal role to train or supervise the lashers, Mr Gibson should have sought improved performance measures to monitor the policy.
POAL’s systems for safety observations were inadequate in monitoring “work as done” (and non-compliance) on the night shift. There were insufficient lead indicators. At least in part, it was the responsibility of Mr Gibson to take reasonable steps to implement a system that monitored and measured such compliance.
Mr Gibson did not have actual knowledge of the stevedores engaging in unsafe practices or cutting corners on the night shift, including failing to comply with the three-container width policy. However, following a fatality in 2018, he was on notice that POAL had ongoing difficulties in adequately monitoring “work as done”. Mr Gibson should have been aware that appropriate systems and processes needed to be put in place to address POAL’s previous failures in that respect. More could, and should, have been done to monitor and measure compliance in relation to the critical risk of handling loads.
A Board report prior to the incident included data on incidents, near misses and non-compliance in relation to handling loads, but stated that the table was not reflective of actual events due to lack of reporting, indicating a lack of monitoring of “work as done”.
Mr Gibson was aware or ought to have been aware that POAL’s “bow tie” risk management assessments for critical risks (including the risk of handling overhead loads) were inadequate and not progressed in a timely manner. At least in part (in a supervisory sense), this progress was the responsibility of Mr Gibson.

In relation to Doble, the HCNZ found that Doble had correctly focused on the reasonableness of Mr Doble’s steps taken and reliance on a safety advisor. However, the fact specific assessment of Doble was of limited assistance to Mr Gibson’s case. It did not involve similar factual circumstances other than a level of generality.

Appeal of sentence and costs

The HCNZ held that the overall packet of sanctions of $190,000, comprising a $130,000 fine and an order to pay $60,000 for the prosecutor’s costs, was not “manifestly excessive”, and dismissed his appeal against the sentence and costs.

Implications for officers

The HCNZ’s dismissal of Mr Gibson’s appeal solidifies the need for officers to take “reasonable steps” to exercise due diligence to ensure that their organisation is discharging its statutory safety duties.

The HCNZ accepted that “reasonable” does not mean “perfect”, however nor does “reasonable” necessarily mean the “average” of what others would do. Indeed, common practice may or may not involve sufficient reasonable steps. It is relevant to assess whether any further steps are required to satisfy officer duties.

A clear precedent has been set for officers and their due diligence obligation. The key takeaways from this case are:

Officers who are personally aware of critical risks to workers must ensure proactive critical risk management. This includes monitoring of policies and procedures to ensure compliance and monitoring of “work as done”.
Officers cannot delegate away their due diligence obligations. Officers cannot rely on workers with specific responsibilities for health and safety or assume that the organisation’s systems are adequately addressing health and safety risks.
Positive initiatives and “doing a lot” do not equate to compliance with due diligence duties. In this case, the extensive health and safety improvements made by Mr Gibson during his time as CEO were not treated as exculpatory and did not answer the question of whether a reasonable officer would have taken further steps.

For advice and guidance on how this case may impact your governance and due diligence practices, please contact Katherine Morris, Partner at Norton Rose Fulbright Australia.

Footnotes

¹ POAL, the PCBU, pleaded guilty to failing to take reasonably practicable steps to ensure certain workers’ safety, exposing those workers to a risk of death or serious injury.

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