CEOs cannot escape health and safety responsibility — the High Court confirms
CEOs cannot escape health and safety responsibility — the High Court confirms
Tuesday 21 April, 2026
Background
New Zealand's first conviction of a CEO of a large organisation under the Health and Safety at Work Act 2015 has survived an appeal.
For senior leaders, this decision sends a clear warning that health and safety due diligence is a personal legal obligation. It cannot be delegated, ignored, or assumed by those below you.
Overview
The High Court has dismissed Anthony Gibson's appeals against both his conviction and sentence. Mr Gibson has been found guilty of offences under the Health and Safety at Work Act 2015 (HSWA).
The conviction followed the death of a worker at the Port of Auckland. A shipping container fell on him as he was lashing containers on board the MV Constantinos.
After the incident, Maritime New Zealand (MNZ) brought charges against Ports of Auckland Limited (POAL) and Mr Gibson (its Chief Executive Officer).
Mr Gibson was convicted for failing to exercise due diligence as an officer of POAL and sentenced to a fine of $130,000 and costs of $60,000.
This was the first case in New Zealand of its kind. An officer of a large PCBU (person conducting a business or undertaking) had never been convicted of failing to exercise due diligence under HSWA.
Mr Gibson later appealed his conviction and sentence, giving rise to the High Court’s latest decision.
Mr Gibson’s appeal
The High Court applied the standard test for conviction appeals. The Court can only allow an appeal where the trial judge made such a significant error in assessing the evidence that a miscarriage of justice occurred.
Mr Gibson advanced several grounds on appeal, including that:
- The prosecution mistakenly relied on Australian cases decided under repealed legislation.
- The prosecution’s lead expert relied on a paper-based review of relevant materials, rather than undertaking interviews with staff and conducting a thorough investigation.
- The Trial Judge focused on "systems leadership" and a CEO having "ultimate responsibility" which are concepts not found in section 44 of HSWA. This effectively made Mr Gibson a proxy for POAL's failures.
- His sentence was also appealed as manifestly excessive. This was, after all, the first conviction of an officer of a large PCBU under HSWA's due diligence regime.
High Court’s decision
The High Court upheld the Judge's finding that Mr Gibson had not taken steps that a reasonable officer in the same circumstances would have taken.
The High Court acknowledged that some of the trial Judge's language was poorly chosen. However, it was satisfied that the Trial Judge had correctly applied section 44's reasonable officer test and had not confused POAL’s duties with Mr Gibson’s individual duties.
The High Court also upheld the use of MNZ's expert, Mr Kahler, as a qualified witness. This was despite his review being document-based. He had no direct knowledge of the Port but was still entitled to give opinion evidence on the steps Mr Gibson should have taken.
The High Court considered the $140,000 starting point somewhat stern. However it remained within the appropriate range for his level of culpability. looking at the overall picture, the High Court held that the combined total of $190,000 was not manifestly excessive.
Both the conviction appeal and the sentence appeal were dismissed. Mr Gibson's fine of $130,000 and costs order of $60,000 were upheld.
Key Takeaways
This decision is the first conviction of an officer of a large, complex PCBU under HSWA's due diligence regime. It has significant implications for anyone in a senior leadership role. Below are the key takeaways:
- Officer duties are independent but not disconnected from what happens “on the ground”. An officer does not have the same health and safety duties as a PCBU. However, officers must meet a minimum standard of behaviour. This includes putting systems in place to ensure the PCBU complies with its obligations. It also means providing proper supervision to make sure those systems are followed.
- Positive steps are not a complete answer. The key question is whether a reasonable officer in the same circumstances would have done more. Good leadership and commendable initiatives will not excuse specific, identified failures in monitoring compliance.
- "Hands-on" engagement is not a liability trap. The law does not reward disengagement. A remote CEO cannot avoid responsibility simply by keeping their distance. Equally, a more engaged CEO should not be held to a higher standard simply for taking an active interest in health and safety.
- Reasonable reliance on subordinates is permissible but has limits. Senior managers and directors may rely on others where it is reasonable to do so. However, they cannot simply assume that health and safety systems are adequately addressing risks. Proper enquiry is required.
If you have questions about health and safety governance obligations for officers or directors, please get in touch with one of our experts below.
