Former Ports of Auckland CEO Tony Gibson (right) was prosecuted over the death of stevedore Pala’amo Kalati (inset), who was struck by a falling container in 2020.
Former Ports of Auckland CEO Tony Gibson (right) was prosecuted over the death of stevedore Pala’amo Kalati (inset), who was struck by a falling container in 2020.
In an employment, health and safety update to clients, the firm said the case was the first time an officer of alarge New Zealand company had been prosecuted for an alleged breach of due diligence duties under the Health and Safety at Work Act’s section 44.
Gibson was last month found guilty of failing to undertake adequate due diligence as an officer of the port company to ensure it complied with its health and safety obligations.
The judgment is subject to appeal.
Gibson has not been sentenced. He faces a fine of up to $300,000.
The judgment last month resulted from a prosecution by Maritime NZ after the death of Pala’amo Kalati at the port in 2020.
Kalati was killed when a container fell on him from a crane. He had been within a crane exclusion zone at the time of the incident and the crane driver had not seen him.
Changes had been made to supervision at the port in 2020 to comply with Covid 19 “bubble” restrictions, the firm’s update said.
The port pleaded guilty to charges under the act relating to the death.
The novel aspect of the prosecution was Gibson also being prosecuted for alleged failings as an officer of the company, Russell McVeagh said.
Maritime NZ alleged he breached his duties under the act by not taking reasonable steps to ensure the port had used or made available appropriate resources and processes to eliminate or minimise health and safety risks arising from the port’s work.
Those measures included having clearly documented, effectively implemented, and appropriate exclusion zones around operating cranes. Gibson was found guilty on that ground.
That charge alleged Gibson, by failing to comply with his duty, exposed stevedores to a risk of death or serious injury, namely the risk of being struck by objects falling from operating cranes.
Pala'amo Kalati (right) with wife Dro and six of their seven children: Jairus, Mischa, Azra, Braxton, Sarai and Iman. Kaliti was killed in an accident on August 30, 2020. Photo / Supplied
Another measure was to have clearly documented, effectively implemented, and appropriate processes for ensuring coordination between lashers and crane operators. Gibson was acquitted on that ground.
Gibson was also found not to have taken reasonable steps to verify the provision and use of those resources and processes, Russell McVeagh said.
“In larger organisations there are often several layers of management between officers and front line operations and work is delegated.
“Prior to Gibson ... there had been no New Zealand case on the scope of due diligence duties in larger organisations and whether the duties of officers in such organisations are limited to governance or oversight functions,” the firm said.
Judge Steve Bonnar KC said due diligence applied “to all officers across all PCBUs (person conducting a business or undertaking), large and small, with both flat and hierarchical structures”.
“The fact that an officer may operate at the head of a large, hierarchical organisation does not mean that the officer’s obligations are diminished,” he added in his decision.
The judgment also found the due diligence duties of officers in large organisations were not limited to governance or oversight functions,“ the firm said.
Port of Auckland is owned by Auckland Council.
“Further judicial guidance is needed to determine exactly what this means for officers of large organisations. However, certain key themes do emerge from the judgment which will be of assistance to officers in understanding their obligations,” the firm said.
That included officers being proactive in ensuring systems were in place to verify how work was being carried out in practice, and ensuring health and safety issues were addressed once raised.
The firm said the case confirmed “some core principles”.
“The judgment makes clear that the scope of due diligence obligations owed by officers (even in large organisations) will turn on the risk inherent to their workplace and what they are expected to know as officers.
CEOs or other officers would be expected to get the right information from the right people and ensure action was taken to address risks known to them, or which ought to be known to them, the firm said.
“The case is significant in holding that the due diligence obligation of officers in large organisations is not just limited to governance or oversight functions.
“This means that officers who have roles in a PCBU that involve more than governance will be expected to bring due diligence to those activities. This is particularly significant for senior executives who have governance and management duties.”
The case also demonstrated some key practical lessons for officers more generally, Russell McVeagh said.
They included the importance of officers verifying health and safety systems thought to be in place were effective and being followed.
“Getting the right information from the right people who are on the ground is crucial. Officers must also ensure that health and safety initiatives are followed up on and closed out and there is sufficient documentation of what is and is not done.”
Andrea Fox joined theHerald as a senior business journalist in 2018 and specialises in writing about the $26 billion dairy industry, agribusiness, exporting and the logistics sector and supply chains.
