Judge-alone trial — health and safety — officers' duties — due diligence — failure to ensure safety of workers — exposing individual to risk of death or serious injury — container ship — stevedore — liability of CEO — Health and Safety at Work Act 2015, ss 3, 16, 18, 22, 26, 27, 30, 31, 36, 44, 48 & 49 — Health and Safety in Employment Act 1992, s 56 — Accident Compensation Act 2001, ss 185 & 264A — Evidence Act 2006, ss 25(2) & 49 — Legislation Act 2019, s 9 — Occupational Health and Safety Act 1983 (NSW), s 50 (repealed) — Occupational Health and Safety Act 1983, s 50 — R v Wanhalla [2007] 2 NZLR 573 (CA) — Sarginson v Civil Aviation Authority [2020] NZHC 3199 — Inspector Ken Kumar v David Aylmer Ritchie [2006] NSWIRComm 323 — Work Cover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd & Smith [2004] NSWIRComm 349 — Inspector Aldred v Herbert & Ors [2007] NSWIRComm 170 — Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) — SafeWork NSW v Doble [2024] NSWDC 58 — McLaren Maycroft & Co v Fletcher Development Co Ltd [1973] 2 NZLR 100 (CA) — Mason v Dodd [2020] NZHC 1508 — Bindon v Bishop [2003] 2 NZLR 136 (HC) — Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98 — Sansom v Metcalfe Hambleton & Co [1998] PNLR 542 — Dovuro Pty Ltd v Wilkins [2003] HCA 51. The defendant was on trial for two charges in the alternative laid under ss 48(1) and 49(1) of the Health and Safety at Work Act 2015 ("the Act") of failing to take reasonable steps to ensure that his company had appropriate resources and processes to eliminate risks to health and safety, thereby exposing his employees to risk of death or serious injury. The victim was employed by the company as a stevedore lasher and was helping unload a container ship that was docked at one of the defendant's cargo terminals. One of the port cranes was lifting two containers when a third container was accidentally lifted as well. The third container detached and crushed the victim, killing him. The company had previously been convicted and sentenced on charges under the Health and Safety at Work Act, and the prosecution laid separate charges against the defendant who was the CEO of the company. In this trial there were mixed issues of fact and law. In order to determine the issue, the Court needed to consider the circumstances of the defendant (including the nature of the company's business and the defendant's responsibilities as the CEO), what steps a reasonably careful, diligent and skilful CEO would take in those circumstances, and whether the defendant failed to take those steps. The Court recognised that the port was an inherently hazardous workplace and stevedoring was an inherently dangerous job. The company operated an expansive health and safety system which delegated roles and responsibilities from Board level to the operational level, and as CEO the defendant's role was to ensure the systems and processes were adequate to ensure the safety of workers and compliance with the Act. The Court also noted that the company had a number of previous health and safety convictions while the defendant was CEO, and was therefore satisfied that the defendant was on notice that the company had demonstrated ongoing difficulties with health and safety. As CEO, the defendant should have known that appropriate systems and processes needed to be put in place to address the company's ongoing failures. There was also a known culture of stevedores cutting corners when it came to health and safety, and it was the responsibility of company officers, including the defendant, to ensure that systems and processes were in place to address this. The defendant was not a hands-off or remote CEO, and was personally aware of the relevant risks and what controls were or were not in place to address those risks. The Court was therefore satisfied beyond all reasonable doubt that the defendant had failed to exercise the care, diligence and skill that a reasonable officer would have exercised in the same circumstances, and therefore failed to comply with the duty imposed on him under the Act. The Court was also satisfied that this failure exposed the stevedores to the risk of death or serious harm. The defendant was found guilty on the charge laid under s 48(1) on particulars 1(a) and 2 of the charge. The Court was not satisfied as to his guilt in relation to particular 1(b) of the charge. As the charge alleging an offence under s 49(1) was laid in the alternative, no verdict was returned on that charge, which was to be dismissed in open court in due course. Judgment Date: 26 November 2024.