Officers: Expanding the Accountability Net

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Officer Liability in New Zealand: The Gibson v Ports of Auckland Case

The watershed moment

In November 2024, the New Zealand courts convicted Tony Gibson, the former Chief Executive of Ports of Auckland Limited, of breaching his officer duties under the Health and Safety at Work Act 2015. The incident that triggered the prosecution occurred in August 2020, when a stevedore was killed after being struck by a shipping container that fell from a crane at the port.

This case marks a significant turning point in how New Zealand courts approach officer liability. The prosecution occurred against the backdrop of a workplace death at one of the country’s largest and most complex organisations. What makes this case exceptional is not the incident itself, but rather that courts have now demonstrated a willingness to hold a senior executive of a large corporate entity accountable for the systemic safety failures that preceded it. Previously, officer prosecutions under the HSWA tended to involve small, tightly held businesses where the officers were directly involved in day-to-day operations. Gibson changes that calculus significantly.

The regulatory landscape shift

The unsuccessful prosecution of the directors of Whakaari Management Limited following the 2019 White Island eruption provides useful context. Despite the catastrophic loss of life in that case, the courts ultimately did not find that the directors’ liability could be properly established under the HSWA. This earlier failure to secure convictions meant that Gibson represents the first successful prosecution of an officer in a large, complex organisation.

That earlier failure makes the Gibson outcome all the more significant. The courts had previously demonstrated reluctance to extend officer liability into the realm of large corporate structures where decision-making is distributed and the chain of causality between an individual officer’s choices and workplace harm is necessarily less direct. Gibson shows that reluctance has been overcome.

What the regulator appears to be signalling

The regulator’s response to the Gibson conviction suggests the regulator intends to shift its enforcement posture. Rather than simply waiting for serious incidents to occur and then pursuing prosecutions retrospectively, the regulator appears to be pivoting toward proactive engagement with officers about their compliance obligations. This might involve the regulator discussing safety governance with senior leaders before incidents happen, rather than only after.

The regulator also appears to be placing increased weight on published good practice standards. The Institute of Directors released its Health and Safety Governance: A Good Practice Guide in July 2024. The regulator’s signalling suggests this guidance is becoming an increasingly important reference point against which officer conduct will be measured. Officers who can demonstrate they have actively consulted such guidance and attempted to implement it are in a better defensive position than those who have not.

It is worth noting that the regulator itself has undergone internal review. Crown Law completed a review of WorkSafe’s prosecution function in August 2024, which identified concerns about confusion regarding the regulator’s enforcement priorities and the impact of excessive investigations on resource allocation and investigation quality. This institutional context helps explain why the regulator may be moving toward more targeted, principled enforcement rather than volume-based prosecution.

The evolving case law

The Gibson case has not resolved all questions about officer liability. The High Court has recently issued several significant decisions interpreting the core duties within the HSWA, particularly around the scope of due diligence obligations for large organisations with complex management structures. The Maritime New Zealand v Gibson penalty decision (issued in early 2025) set out sentencing principles in this context. Separately, the High Court has clarified the duties owed by persons controlling or managing a workplace, and has revisited the interpretation of primary duties of care. Gibson itself has been appealed, with the High Court hearing the appeal in June 2025, suggesting that the legal principles remain contested.

This pattern of ongoing appellate activity indicates the courts are still working through how the HSWA’s officer provisions should be applied in contemporary corporate contexts. The interpretive landscape is unsettled, and further case law can be expected.

What the Gibson case tells officers about their obligations

The practical takeaway from Gibson is that officers of large organisations cannot rely on organisational distance or complexity to shield themselves from liability. The courts appear to expect officers to:

Engage systematically with health and safety governance. This means more than passive oversight. It means understanding what safety systems and controls should exist in the organisation’s high-risk areas, whether those systems are actually functioning as intended, and whether they are being properly maintained and reviewed. Documentation matters here. An officer who can point to board papers, committee minutes, safety performance reports, and strategic initiatives is in a stronger position than one who cannot.**

Actively acquire knowledge about high-risk activities.** If an organisation operates in a high-hazard sector or carries out work involving particular risks, officers need to demonstrate they have informed themselves about those risks and about the control measures that industry guidance and good practice suggest should be in place. Relying on the excuse that “I didn’t know what should be done” is unlikely to succeed if guidance materials were readily available.**

Participate meaningfully in governance forums.** Where an organisation has safety committees or forums at board or executive level, officers need to demonstrate active participation, not mere attendance. This means engaging with the substance of what is presented, asking challenging questions, and ensuring that safety matters are followed up between meetings.**

Understand the limits of delegation.** Officers can delegate operational responsibility for safety to competent personnel. However, delegation does not remove the officer’s own duty to exercise due diligence. An officer needs to verify that delegated responsibility is being discharged effectively, which means having access to relevant data, performance metrics, and incident information.

Australian comparative cases

SafeWork NSW v Miller Logistics and Mitchell Doble (2024)

In an Australian context that provides useful comparison, a transport company director successfully defended officer liability charges despite his company being convicted. The director had implemented a deliberate approach to safety governance: he had engaged a specialist compliance manager to oversee safety across multiple depots, he attended weekly management meetings where safety was a standing agenda item and new measures were discussed, he ensured safety discussions were properly documented and followed up at subsequent meetings, he conducted site visits and took action on issues he identified, he reviewed and approved safety policies prepared by his safety officer, and he remained involved in urgent safety matters regardless of financial cost.

The court accepted that a director cannot reasonably be expected to know everything occurring at every moment in a complex operation, and that appropriate reliance on competent delegated personnel is permissible. However, the director needed to demonstrate active oversight, regular engagement with safety data, and a genuine commitment to following through on safety matters.

In contrast, the company itself was convicted and fined significantly. This split outcome (company liable, director not liable) demonstrates the importance of officers being able to show systematic governance, not merely passive involvement.

Link: https://leglobal.law/2025/10/23/australia-whs-duties-for-officers-how-to-ensure-you-perform-your-due-diligence/

SafeWork NSW v HMR Supplies (2025)

A contrasting Australian case involved a small family business manufacturing metal roofing where a worker was struck by a forklift. The director was convicted and fined. The court found that the director had not taken any genuine steps to inform himself about what safety control measures should have been implemented. The court noted that guidance materials setting out appropriate control measures were readily available and that the director could have consulted them if he had been genuinely engaged in his safety obligations.

The critical difference from the Miller Logistics case was the absence of any systematic approach to safety governance. There was no evidence of documented policies, regular review, or active engagement with safety specialists. The director had essentially ignored his obligations, and the courts treated this very seriously.

Link: https://leglobal.law/2025/10/23/australia-whs-duties-for-officers-how-to-ensure-you-perform-your-due-diligence/

The distinction between the two Australian cases

The Miller Logistics and HMR Supplies cases together illustrate the fault line in officer liability. Officers who implement systematic governance frameworks, delegate to competent persons, maintain oversight of safety performance, and actively engage with safety matters are in a defensible position, even if incidents occur. Officers who do not engage systematically, who ignore available guidance, and who treat safety as an optional add-on rather than a core governance obligation face serious personal liability.

The Australian courts’ willingness to convict individual officers and impose personal fines (in the HMR Supplies case, the director was fined $45,000) demonstrates that regulatory expectations have shifted substantially. The obligation to inform oneself of what good practice looks like is no longer optional.

Key takeaway for New Zealand officers

The Gibson case, considered alongside recent Australian precedents, suggests that officer liability is becoming a more prominent feature of health and safety enforcement across the Tasman. New Zealand officers of significant organisations should interpret the Gibson conviction as signalling that:

The regulator is prepared to investigate and prosecute officer liability in large, complex organisations, not merely small businesses.

The regulator’s expectations about what officers should know and do are increasingly codified in published guidance (such as the Institute of Directors’ framework). Familiarity with such guidance is becoming part of the baseline expectation.

Proactive engagement by the regulator with officers on governance matters is likely to increase, presenting both a risk and an opportunity. Risk, because engagement may signal the regulator’s heightened interest in particular organisations or sectors. Opportunity, because officers who engage constructively with the regulator about governance can potentially influence the regulator’s view of compliance.

The courts are unlikely to accept organisational complexity or size as an excuse for weak safety governance. Officers of large organisations face the same expectations as officers of small ones, adapted for scale and complexity.