Former NZ Port CEO on trial

A trial that will have major ramifications across New Zealand’s port and industrial sectors is currently underway in the Auckland District Court. Former Ports of Auckland CEO Tony Gibson has been personally charged by the NZ Maritime safety Authority with breaches of the Health and Safety at Work Act 2015.

The charges stem from a lashing accident in 2020 where port worker Pala’amo Kalati was tragically killed on a container vessel. Kalati was conducting lashing work during discharge operations. An STS crane lifted two 20ft containers, one of which was still connected to a third container below. During the lift the third container broke free and fell into the hold, crushing Kalati.

In 2023 Ports of Auckland as a corporate entity pleaded guilty to and was sentenced on two charges of breaching the Health and Safety at Work Act 2015. The port was fined NZ$561,000.

In New Zealand there is a statutory bar on lawsuits for personal injury, meaning there is no civil liability in New Zealand for most personal injuries, including workplace accidents. The port made a voluntary “reparation” payment to the Kalati family in this instance, but it is protected from a civil lawsuit for damages. It has long been argued that this protection, which has existed since 1973, has resulted in a comparatively lax attitude to workplace safety.

After a taskforce identified that NZ’s health and safety system ‘was failing” reforms were introduced with the Health and Safety at Work Act 2015. This includes placing the “primary responsibility” for the health and safety of workers on business and creating statutory obligations on officers including company directors, partners, board members, and chief executives to perform “due diligence to make sure the business understands and is meeting its health and safety responsibilities.”

In what is a test case for the whole country Tony Gibson is being charged with a failure under these responsibilities. Maritime New Zealand is arguing the port’s lashing policies, which include a rule prohibiting lashers from working three containers from an operating crane, were not appropriate for the risks involved and were not properly documented and implemented. Furthermore, it alleges that Auckland had a poor safety record and as CEO Gibson had a duty to act to address the port’s poor safety culture.

Tony Gibson has pleaded not guilty. His lawyer is arguing Gibson was actively involved in health and safety at the port, including developing improved policies. However, as an individual the CEO cannot be held personally accountable for actions of individual right across the company in every operational aspect, or for systematic failures they cannot control.

The case is the first time a CEO in New Zealand has been charged under the relatively new legislation. If Gibson is found guilty this would likely cause a major review of operational practices right across the country’s port sector.