Gibson v Maritime New Zealand - [2026] NZHC 813

Appeal against conviction and sentence following judge-alone trial on a charge of failing to exercise due diligence as an officer of Ports of Auckland Ltd (POAL) giving rise to a risk of serious injury or death under ss 44 and 48(1) of the Health and Safety at Work Act 2015 (HSWA) – in particular, failing to:

(a) take reasonable steps to ensure that there was a clearly documented, effectively implemented, and appropriate exclusion zone around operating cranes; and
(b) take reasonable steps to verify the provisions of the relevant resources and processes specified.

The charge followed the death of a worker at the Port of Auckland when a shipping container fell on him as he was lashing containers on board the MV Constantinos. The appellant was at the time the CEO of POAL and subject to a duty to exercise due diligence to ensure POAL as a “person conducting a business or undertaking” (PCBU) complied with its separate duties under HSWA. The appellant was sentenced to a fine of $130,000 and ordered to pay costs of $60,000 under s 152 of the HSWA.

Grounds of appeal against conviction included:

(1) the prosecution’s mistaken reliance on Australian cases considering repealed statutes with a reverse onus on an officer;
(2) the prosecution’s lead expert relying on a paper-based review rather than undertaking interviews with staff and a thorough investigation;
(3) 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 s 44 of HSWA, and thereby making the appellant a proxy for POAL and its separate failings.

Counsel for the appellant identified a number of claimed errors made by the trial Judge and submitted they compounded on one another which led him to ignore relevant evidence, dismiss defence witnesses and overlook a lack of crucial evidence, essentially overlooking s 44(2) of HSWA.

HELD: For the reasons given, there was no miscarriage of justice and the conviction appeal is dismissed. In relation to the sentence appeal, the Judge did not err in law by using the culpability factors from Stumpmaster. The mandatory s 151 factors in HSWA apply to convictions under s 48 irrespective of the duty breached – but the application of s 151 depends on the breach of duty in issue. While the starting point of $140,000 may have been stern and the reduction of $10,000 was not generous, they were not outside the appropriate range. The costs award was also in range. The overall packet of sanctions was not manifestly excessive. The appeal against sentence is also dismissed.