Former Ports of Auckland CEO Tony Gibson (right) went on trial over the death of stevedore Pala’amo Kalati. And the case against Gibson could have far-reaching consequences for people in positions of corporate and community power. Photo / NZME
Former Ports of Auckland CEO Tony Gibson (right) went on trial over the death of stevedore Pala’amo Kalati. And the case against Gibson could have far-reaching consequences for people in positions of corporate and community power. Photo / NZME
Board members and other influential people at schools or charity groups could face more exposure to legal action after a landmark Port of Auckland prosecution, a senior lawyer says.
For senior board members at a school where child abuse or other unsafe practices had been reported, “there maywell be some exposure” if people were on notice about offending and had not taken steps to address it, said Matthew Ferrier, Partner at MinterEllisonRuddWatts.
The case was believed to be the first time an officer of a large local company was prosecuted for an alleged breach of due diligence duties under the Health and Safety at Work Act’s section 44.
Ferrier said Gibson was not personally involved in the fatal incident where Kalati died in 2020. But in some contexts, high-ranking people did not have to be to face prosecution.
“There wouldn’t be an expectation that they’d be across every level,” Ferrier added. “Gibson was effectively on notice.”
Pala'amo Kalati (right) with wife Dro and six of their seven children: Jairus, Mischa, Azra, Braxton, Sarai and Iman. The case against Kalati's employer could have far-reaching consequences across New Zealand.
Kalati, known as Amo, was 31 years old when he was killed at the port in 2020.
Prosecuting agency Maritime NZ and trade unions welcomed Judge Bonnar’s decision, in which Gibson was found to be aware of safety problems at the port.
A key concept in the relevant law and the case after Kalati’s death was that of a PCBU – person conducting a business or undertaking.
Ferrier said an individual person such as a sole trader or builder could be a PCBU.
Ferrier said a PCBU could be a charitable organisation but “volunteer associations” were excluded.
In this context, a volunteer association was “a group of volunteers, whether incorporated or unincorporated, working together for one or more community purposes where none of the volunteers employed anybody to carry out work for the association”.
“Officers have an obligation to ensure the PCBU complies with its duties,” Ferrier said.
That meant, generally, a chief executive and members of a company board had a duty to take reasonable steps to ensure the PCBU was fulfilling its duties.
Ferrier said nuances would apply.
“In practice, the duty would be applied differently to the board of trustees or a charitable organisation as opposed to a large company involved in a high-risk activity like the port.”
Criminal statutes don’t apply retroactively, and the current Health and Safety at Work Act took effect in 2015. The prosecuting agency must file charges within a year of an alleged breach or crime under the act coming to its attention.
Worksafe, the Civil Aviation Authority and Maritime New Zealand were the primary prosecuting agencies, Ferrier said.
Abuse survivor: Accountability needed
Dilworth survivor Neil Harding said the Gibson case raised questions about accountability at faith-based and State-based institutions where child abuse had been rampant.
“So many people have failed in protecting children over so many years, and Crown Law has failed,” he said.
“All these survivors, all these damaged children, and no-one is held accountable for enabling the environment, enabling the abuse.”
Harding said Prime Minister Christopher Luxon raised key issues at the national apology last month, including the need for survivors to have wraparound care and meaningful redress.
But he said there was mot enough recognition about “accountability and justice for those people that have failed in their duty of care”.
Over-regulation risk cited
In a different context, employment advocate Max Whitehead said the decision against Gibson could have an unintended effect in over-regulating workplaces.
“You think we’re saturated with orange cones now, we’re about to see them in private enterprise everywhere.”
Whitehead said it was crucial for CEOs to be mindful of health and safety but added: “How far do you go?”
He said overreaction would stifle growth.
“The CEOs of every business now will be super-conscious of health and safety. Now they’re personally liable, they’re going to be moving very much in the directions of over-extremes,” he said.
“There’s going to be a lot of change. You’ll find that CEOs will be insisting at all levels there’s a change.”
Meanwhile, Gibson this week said he was yet to decide on whether to appeal.
He could face a fine of up to $300,000.
On Tuesday Gibson said he had no comment to make and his legal team was still working on the matter.
On Thursday, his lawyer John Billington KC said it would not be appropriate or wise to discuss whether or not an appeal would be filed before February 21, when Gibson was scheduled to be sentenced.
After that, a sentence could potentially lodged against conviction, sentence, or both.
John Weekes has covered crime and courts for publications including the Herald, Herald on Sunday, Dominion Post, and has reported on abuse in care survivors for more than five years.
