Maritime NZ v Gibson: some thoughts

I have now had an opportunity (albeit brief!) to consider the reserved judgment of Judge Bonnar KC in Maritime New Zealand v Gibson. The decision is important and (subject to what happens with any appeal) offers useful guidance for company directors and Chief Executives about what they need to do to meet their personal due diligence duty under section 44 of the Health and Safety at Work Act.

Judge Bonnar KC summarised the relevant principles relating to the exercise of due diligence and held:

(a)???????????????? Whether an officer has exercised due diligence is a matter of fact and circumstance.

(b)???????????????? The duty to complete due diligence applies to all officers across all PCBUs, regardless of their size or structure.? In large, hierarchical organisations the duty is not limited to governance or directorial oversight functions.

(c)???????????????? Officers are not required to do everything that the PCBU is required to do to comply with its duties. A failure by a PCBU does not necessarily mean officers have failed to exercise due diligence.

(d)???????????????? Officers in large PCBUs cannot simply rely on others who are assigned health and safety obligations or roles. Officers must personally acquire and maintain sufficient knowledge to satisfy themselves that the PCBU is complying with its duties.

(e)???????????????? When people are assigned to perform health and safety obligations or roles, officers must ensure these people have the necessary skills and experience to properly execute their roles, and must adequately and regularly monitor their performance.

(f)????????????????? Officers must acquire and maintain sufficient knowledge of the way work is actually carried out to adequately identify and address actual workplace hazards and risks. The focus should be on work as done, not on work as imagined.

(g)???????????????? It is not enough for officers to simply put in place policies and procedures for how work is to be carried out.? Officers must go further and ensure that entrenched and adequate systemic processes are working to ensure the PCBU complies with its duties.

(h)???????????????? Officers must ensure there are effective reporting lines and systems in place to ensure necessary information flows up to the officers (and to others with governance or supervisory functions).

(i)?????????????????? Officers can't assume the information they receive from subordinates is accurate and sufficient, or that the absence of bad news is the same as good news. Instead officers need to be proactive and monitor, verify and interrogate the information they receive.

Ultimately, the Court must objectively determine the reasonableness of the officers' actions. Judge Bonnar KC was clear that an officer who objectively falls below the standard required by the Health and Safety at Work Act will be guilty, and the fact other comparative officers may also have routinely been falling below the required standard is not a defence.

On the facts, Judge Bonnar KC had concerns about:

·???????? Ports of Auckland Limited's systems for critical risk management;

·???????? The non-implementation of improvements recommended by an external audit in 2018;

·???????? The oversight by the Port's Health and Safety Steering Committee;

·???????? The lack of annual health and safety strategy plans;

·???????? Insufficient responses to previous incidents; and

·???????? The non-implementation of controls like signage and barriers to mitigate the risks of falling objects before longer term technological controls like geofencing could be implemented.

Ultimately, Judge Bonnar KC found the charge proven beyond reasonable doubt.

I expect this decision to concern Boards and Chief Executives. All will need to consider the implications of the case, and what it means for both management reporting and officer due diligence activities in their organisations.

Maritime New Zealand has indicated an intention to work with WorkSafe New Zealand and the Institute of Directors to provide updated guidance for officers. This is to be welcomed.