Keeping people safe at work is a shared responsibility. The Health and Safety at Work Act 2015 (“HSWA”) sets out duties for businesses and their leaders to look after the health and safety of workers, customers, and anyone else affected by what they do.
But what does this look like in practice? Two recent cases have helped answer that question, clarifying who is responsible when something goes wrong.
Whakaari / White Island Cases
Background
On 9 December 2019, Whakaari erupted during a guided walking tour, tragically killing 22 people and seriously injuring a further 25.
The island is privately owned by the Buttle family. They allowed commercial tour operators to conduct walking tours of the island through a company called Whakaari Management Limited (“WML”) which granted licenses to the tour companies.
Following the eruption, WorkSafe NZ charged WML under section 48 of the HSWA, alleging a failure to comply with its duties under section 37. WorkSafe argued that because WML permitted access and profited from the commercial activity, it held health and safety responsibilities that could not be contracted out of or passed on.
WorkSafe New Zealand v Whakaari Management Limited [2024] NZDC 4119
In 2024, the District Court agreed with WorkSafe. It ruled that WML had effectively created a workplace by granting access to tour companies and it should have done more to assess and manage the risks of a volcanic eruption.
WorkSafe New Zealand v Whakaari Management Limited [2025] NZHC 288
WML appealed the decision. In 2025, the High Court overturned the conviction. The Court said that WML was not actually managing or controlling the island in a practical or active sense. It was simply allowing others to access the land.
WML was not involved in the daily operations of the tours, it did not supervise the guides, nor did it manage or control any facilities on the land. While it did profit from the licence agreements, this alone was not enough to make it responsible under the HSWA.
Judge Moore also noted that WML had relied on expert advice from key stakeholders such as GNS Science and Government agencies. In this way, even if WML did have a duty, the Court said that it had not breached it by relying on those parties’ expertise.
What we can learn from this case
While the decision will always depend on its facts, this case helps to clarify that simply owning land and/or earning money from it does not make someone responsible under the HSWA. To be held accountable, there needs to be active control or management of the work being done.
For businesses, this means understanding who is responsible for what, especially when you are working alongside other companies or contractors.
Ports of Auckland: CEO charged under the HSWA
Background
In 2020, a worker at Ports of Auckland, Pala’amo Kalati, was tragically killed when a suspended container fell on him within a designated exclusion zone on the port.
While Ports of Auckland was prosecuted as a business (called a PBCU under the Act) WorkSafe also laid charges against the former CEO, Tony Gibson, personally as an “officer” of the company.
This is the first time a chief executive of a major New Zealand company has been charged and found guilty under the HSWA.
Under the HSWA, officers such as directors and CEOs have a duty to exercise due diligence. This means they must take reasonable steps to ensure their company is doing everything it should be to keep its workers safe.
We note that Mr Gibson is appealing his conviction, which is yet to be heard.
Maritime New Zealand v Gibson [2024] NZDC 27975
In 2024, the District Court held that Mr Gibson had failed to exercise his duty of due diligence as an “officer” of a PCBU under the Health and Safety at Work Act 2015 (the Act) and he was sentenced and ordered to pay a $130,000 fine and $60,000 in costs. The Court found as the CEO, he had the authority and ability to influence how the company managed health and safety risks.
The Court described him as a “hands-on” leader who was actively involved in port operations. He was not removed from what was happening on the ground and had the capacity and ability to influence the companies’ actions, particularly in how risks were reported, assessed and managed.
In particular, the Court said that as an officer, Mr Gibson should have:
- taken active steps to understand what work was being done and what the associated risks were,
- ensured proper controls were in place to manage those risks, and
- taken steps to remove or minimise such risks before harm occurred.
What we can learn from this case
This case is a reminder that health and safety starts at the top. It is not enough to rely on policies or delegate responsibility to others.
If you are in a leadership role, whether that be as a business owner, director or executive, you have a legal obligation to stay actively involved in your organisation’s health and safety practices.
