Keeping safe from harm

Port of Auckland case a reminder of strict health and safety requirements under Act

A recent District Court case involving Port of Auckland (POAL) serves as a strong reminder to businesses, especially those operating in high-risk industries, about the importance of adhering to strict health and safety requirements.

The District Court decision was released last week in respect of Maritime New Zealand’s prosecution of former Port of Auckland CEO, Anthony Gibson. 

Judge Bonnar KC found that Mr Gibson committed an offence under s 48(1) of the Health and Safety at Work Act 2015 (Act) in relation to the death of a port worker, Mr Pala’amo Kalati.

His Honour held that Mr Gibson had failed to comply with his duties in exercising due diligence in ensuring POAL complied with section 44 of the Act. 

Section 44 of the Act requires officers of a PCUB (a person conducting a business or undertaking) to take reasonable steps, broadly speaking, to:

1. Keep up to date with and have knowledge of health and safety matters;
2. Have an understanding of the nature of the operations and undertakings of the workplace and the associated hazards and risks;
3. Ensure appropriate resources and processes are used and available to be used to eliminate or minimise risks to health and safety from work carried out;
4. Ensure that there are appropriate processes for receiving and considering information regarding incidents, hazards and risks for responding in a timely way to that information are in place;
5. Ensure that they implement and have processes for complying with duties and obligations under the Act; and
6. Verify that these resources and processes described in (c) to (e) are in place and being used. 

In summary, his Honour found that POAL breached its duty of care to ensure the health and safety of workers. In his role, Mr Gibson was ultimately responsible for health and safety at POAL. He had complete awareness of the critical risks for port workers in handling suspended loads and was responsible for monitoring and reviewing the performance of staff and POAL systems. 

Mr Gibson was held to be aware of the lack of timely POAL responses in recommending improvements to health and safety accountability, monitoring and reporting. This included the appropriate reporting of incidents, near misses and non-compliance. He was either aware or ought to have been aware that POAL’s bow-tie analysis of critical risks, including handling overhead loads were insufficient and untimely.

Further, Mr Gibson was on notice for inadequate monitoring and improvements needed in respect of health and safety concerns. He had knowledge of, but failed to turn his mind to, the pressing need for additional non-technological controls for work carried out by lashers on ships while investigating the availability of technological controls to address lashers entering crane exclusion zones. 

As outlined at the beginning of this article, the case is a reminder of the importance of adhering to the strict health and safety requirements and duties under the Act.

If you need advice on health and safety, or employment issues, please contact Ben Molloy on @email or 09 306 0605 from our employment law team.