In this episode of the 2025 Litigation Forecast podcast series, hosted by Joshua Kimpton, a Senior Associate in our Employment team is joined by Matthew Ferrier, a Partner in the Litigation and Dispute Resolution team, the focus is on the latest developments in New Zealand's health and safety litigation. They delve into the significant Gibson case, WorkSafe's new prosecution strategy, and other recent developments that officers and PCBUs should be aware of. This episode provides valuable insights and guidance on how court decisions and regulatory changes might impact businesses and their health and safety practices in the year ahead.
[01:00] Joshua provides an overview of the topics to be covered in this episode, including the latest developments in New Zealand's health and safety litigation, with a specific focus on the Gibson case, WorkSafe's new prosecution strategy, and other recent developments. Matthew explains why the Gibson case is significant for the governance community. He highlights that the case sets a precedent for holding officers of large companies accountable for breaches of duty. The case is particularly noteworthy as it involves a chief executive officer, Mr. Gibson, who was found guilty of breaching the officer duty. Matthew also mentions that the decision is under appeal, and potential changes in legislation might impact its application.
[02:59] Joshua and Matthew dive into the key facts and issues of the Gibson case. They discuss the details of the fatal incident at Ports of Auckland, where a stevedore was crushed and fatally injured. Matthew outlines the charges against Mr. Gibson and the key factors that led to his conviction. He emphasises the importance of understanding the distinction between the officer duty and the duty of the PCBU (Person Conducting a Business or Undertaking).
[08:30] The discussion then shifts to the court's principles for officer due diligence duties. Joshua and Matthew discuss the 12 principles distilled by the court from the Gibson case. Matthew highlights four key takeaways for officers to ensure compliance and effective health and safety management. These include understanding critical risks, differentiating between hard and soft controls, ensuring clear responsibilities and accountabilities, and addressing lingering audit findings or recommendations.
[19:28] Matthew explains the political and public pressure on WorkSafe that prompted a reassessment of its prosecution strategy. He outlines the new strategy, which focuses on three types of harm: acute, chronic, and catastrophic. The strategy also targets four high-risk industries: construction, manufacturing, agriculture, and forestry. This approach is seen as a return to basics, aligning with recent legislative changes and focusing on critical risks.
[16:49] Joshua and Matthew discuss the potential implications of Mr. Gibson's appeal. Matthew notes that the appeal is likely to focus on the judge's approach to the duty and whether the prosecution effectively held Mr. Gibson accountable for failures by the PCBU. He also mentions recent legislative changes announced by the Minister for Workplace Relations and Safety, which aim to clarify the distinction between governance and management responsibilities.
[23:52] The conversation then covers other recent developments in the health and safety litigation space. Matthew discusses the High Court decision on the Section 37 duty, which relates to the duty of people with management or control of a workplace. He explains the implications of this decision and the announced legislative changes that aim to clarify the responsibilities of landowners and managers in recreational activities.
Information in this episode is accurate as at the date of recording Wednesday, 2 April 2025.
Please contact Matthew Ferrier, or Joshua Kimpton if you need legal advice and guidance on any of the topics discussed in the episode.
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