The Model Work Health and Safety Act 2011 (Cth) (Model WHS Act) imposes a positive duty on officers to exercise due diligence to ensure the person conducting a business or undertaking (PCBU) complies with its work health and safety duties and obligations.
The District Court of New South Wales (the Court) was recently required to determine whether an officer exercised his due diligence duty following a workplace fatality (SafeWork NSW v Whitmarsh (No. 3) [2025] NSWDC 150).
AWB Contractors Pty Ltd (AWB) was a marine construction and salvage company that specialised in removing boats and associated debris from the water in Greater Sydney.
Mr Whitmarsh was the sole director of AWB and held sole responsibility for its work health safety and environmental management system. This included ensuring the safety of AWB’s workers, implementing safety resources and prohibiting workers from engaging in unsafe work practices.
In January 2021, AWB was contracted to remove and dispose of two submerged steel yachts from the Rozelle Bay Maritime Service Centre.
Mr Whitmarsh directed two workers to undertake this task. He instructed the workers to attach slings to the mast of each yacht and lift the yachts from the water by crane.
Prior to commencing this work, the worker who was tasked with operating the crane told Mr Whitmarsh that he did not have a licence or formal training in crane operation. Mr Whitmarsh told the worker that that was fine and instructed him to “back off the lift” if the crane started to go “on its toes”.
The workers commenced the operation as instructed. As the yacht was being lifted from the water by one of the workers in the crane, the mast of the yacht broke and struck the other worker in the back of the head causing fatal injuries.
AWB was charged and pleaded guilty to failing to comply with its duty to ensure, so far as reasonably practicable, the health and safety of its workers and for exposing the workers to a risk of death or serious injury – which is a Category 2 offence.
In addition, Mr Whitmarsh was charged for failing to comply with his duty as an officer to exercise due diligence that AWB complied with its health and safety duties, thereby exposing its workers to a risk of death or serious injury. Mr Whitmarsh pleaded not guilty to this offence.
The Court found that AWB did not undertake a risk assessment of any kind prior to carrying out the operation and, as a result, had no understanding of the size and load limit of the crane or the precise weight of the yacht. The Court stated that even the most elementary risk assessment would have identified that the proposed lift was significantly dangerous.
The Court was satisfied that AWB had breached its work health and safety duties and was therefore open to consider whether Mr Whitmarsh had also failed in exercising his due diligence duty.
The Court clarified that an officer is not required to do what the company should do. The Court stated that rather, the due diligence duty imposed on officers is “to ensure to ensure” – which includes ensuring that the company has adequate processes and resources in place to ensure compliance with its work health and safety duties.
The Court accepted the prosecution’s evidence that Mr Whitmarsh, as the sole director of AWB, was “at the centre of the AWB safety system”. For the Court, Mr Whitmarsh “was the system”.
Accordingly, the Court held that Mr Whitmarsh had “utterly failed” to exercise due diligence to ensure that AWB complied with its work health and safety duties because he had failed to:
(a) put in place the appropriate processes and resources to eliminate or minimise risks to health and safety – this included, but was not limited to, undertaking a risk assessment, identifying the weight of the yachts, identifying the size and weight limit of the crane, assessing the skills and competence of mobile crane operators and requiring mobile cranes to be operated within load limits;
(b) verify by inspection or supervision that adequate personal protective equipment was available and in use during lifting operations;
(c) instruct workers that work should not commence until a risk assessment had been completed and a detailed Safe Work Method Statement had been prepared; and
(d) verify by inspection or supervision that appropriate resources, processes and measures had been provided, implemented and maintained by AWB and were being used by its workers.
The Court considered the above to be significantly worsened by the fact that Mr Whitmarsh was aware that the worker operating the crane did not have a licence yet allowed him to perform the high-risk crane operation. The Court also considered Mr Whitmarsh’s instructions that the worker back off a lift if the crane started to tilt to be “a cavalier and indeed dangerous approach to safe operation of a crane”.
In addition to the above, the Court was satisfied beyond reasonable doubt that Mr Whitmarsh’s failure to exercise due diligence exposed the workers, and in particular the worker who was fatally injured, to the risk of death or serious injury.
The matter has been listed for a sentencing hearing.
It is critical that officers actively exercise the due diligence duty imposed on them under work health and safety legislation.
The Model WHS Act sets out a list of reasonable steps that an officer must take in exercising this duty – which, as seen in this decision, includes ensuring appropriate processes and resources to eliminate and minimise risks to health and safety are made available to the PCBU and are used by the PCBU.
Both employers and officers should be aware that industrial manslaughter laws have now been implemented across all Australian States and Territories. The maximum penalties under these laws range depending on the jurisdiction, which could be anywhere between 20 to 25 years imprisonment for individuals (i.e. officers) and $10 to $20 million in fines for corporations.
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