Ports of Auckland former CEO Tony Gibson to pay $190,000 after death of stevedore Pala’amo Kalati

He was sentenced on a Category 1 offence, only punishable by a fine, and not required to stand or sit in the courtroom dock.

None of Kalati’s family were present.

Prosecutor Stephanie Bishop of Maritime NZ said Gibson showed a serious or gross departure from his duty of care.

“Mr Gibson knew of the critical risks. He was ultimately responsible for health and safety.”

Bishop cited failures with forming policies for working around cranes and said Gibson had several chances to fix systemic issues.

She Kalati worked in an area exposing workers to lethal risk.

There was no suggestion Gibson was reckless but his failings were a serious departure from his duty of care, Bishop said.

“He consciously appreciated that the port system was not working.”

Gibson did apply significant effort but came up short, Bishop said.

She said Gibson was “on notice from at least 2018″ about significant safety issues. Before Kalati’s death, POAL faced multiple convictions for inadequate monitoring of workers.

A fine of $180,000 was appropriate in this case, she said.

Defence counsel John Billington KC said Gibson had expressed condolences and sorrow at Kalati’s death.

“He lives with that today. It’s a matter that causes great personal distress.”

Billington said Gibson loved the port and its people.

The case was believed to be the first time an officer of a large local company was found guilty of breaching due diligence duties under the Health and Safety at Work Act’s section 44.

It was an unusual case, Billington told the court.

A key concept in the case was that of a PCBU – person conducting a business or undertaking.

“It is actually an allegation of negligence … There is no issue of criminal intent here.”

He said Kalati was trained as a lasher, gaining experience with a mentor.

“There were in place processes and systems intended to care for the safety and training of those who employed the stevedores.”

The court heard safeguards were intended to keep lashers three container-widths away from equipment posing a critical risk.

Billington said Gibson was not at the “apex” of POAL, which included numerous experienced directors and executives.

“The port actually is in excess of 650 people … nearly everybody employed there had a duty, and has one, to care for those who work for them and care for those who work alongside them.”

He added: “The failure ultimately was across a wide range of people”.

He said Gibson wasn’t aware some breaches of safety protocols were occurring.

“He ought to have known more than he did.”

But Billington said the penalty starting point should be $50,000, with a 15% discount for good character.

Judge Bonnar said the penalty starting point should be $140,000.

“This isn’t a case of moral culpability. It’s a strict liability offence,” he said.

“No PCBU, one hopes, ever wants to harm a worker. And they all have the best intentions.”

Judge Bonnar said POAL should have done more to eliminate health and safety risks, and should have had better-defined exclusion zones around cranes.

Stevedores on Fergusson Wharf container terminal were at risk of death or serious injury otherwise, he said.

The judge said Gibson was in many ways a hands-on CEO and aware of the lack of response about recommending health and safety improvements.

“The fact that a duty is shared does not diminish the duty … As CEO, he had the power, capability and responsibility to do all he could to reduce the risk.”

Judge Bonnar said the three container-width rule was “routinely not being followed” at POAL or properly documented.

He said New Zealand stevedores suffered from a high rate of injuries and fatalities, both relative to other local industries and to stevedores overseas.

Previously, POAL was also charged over Kalati’s death, pleaded guilty, and was sentenced in late 2023 to a fine of $561,000.

Gibson pleaded not guilty, went to trial, and was found guilty of failing to comply with his duty to exercise due diligence to ensure POAL complied with its duties under health and safety legislation.

The court heard some of Gibson’s friends, former colleagues, associates and members of the business community provided character references.

Judge Bonnar applied a $10,000 discount for prior good character and fined Gibson $130,000.

But the court also heard Maritime NZ wanted a $395,000 costs award, before adjusting that to $180,000.

Both blamed the other for the trial’s complexity, Judge Bonnar said.

He added: “It was the first time the CEO of a major corporation had been charged and convicted” under the relevant law and could be regarded as a test case.

Judge Bonnar said costs should be $60,000.

Outside court, Gibson and Billington both declined to comment.

After 10 years in the job, in 2021 Gibson left Ports of Auckland, which has since been renamed Port of Auckland.