Citation: SafeWork NSW v Paul Whitmarsh (No. 3) [2025] NSWDC 150
Court: District Court of New South Wales
Date: 2 May 2025
Judge: Russell SC DCJ
Background
AWB Contractors Pty Ltd (AWB) was a marine and salvage contractor engaged to lift a sunken yacht named "Crazy Train" from the water at its premises on 27 January 2021. During the lift, the crane operation failed and the yacht's mast struck and killed a worker, Mr Max Haywood. AWB subsequently pleaded guilty to a Category 2 offence under the Work Health and Safety Act 2011 (NSW) (WHS Act) as a person conducting a business or undertaking (PCBU) that failed to ensure worker safety so far as reasonably practicable.
SafeWork NSW separately prosecuted the defendant, Paul Whitmarsh, as an officer of AWB. SafeWork alleged that Whitmarsh failed to exercise "due diligence" as required by s 27(1) of the WHS Act, meaning he failed to take reasonable steps to ensure AWB complied with its safety obligations. AWB is now in liquidation.
The trial proceeded before a judge alone. The defendant admitted most of the particulars alleged against him but contested specific aspects relating to pre-lift risk assessment, including whether adequate weight estimates and equipment sizing had been required before the lift commenced.
Legal Issues
- Whether Whitmarsh, as an officer of AWB, failed to exercise due diligence under s 27(1) of the WHS Act to ensure AWB complied with its primary safety duty under s 19(1).
- Whether that failure exposed workers, in particular Mr Haywood, to a risk of death or serious injury, constituting a Category 2 offence under s 32 of the WHS Act.
- How the court should assess the reliability of witnesses and draw inferences in a judge-alone criminal trial on the applicable standard of proof.
Decision
The court found all four elements of the s 27 offence proved beyond reasonable doubt and entered a verdict of guilty against Whitmarsh.
On the question of due diligence, the court found that Whitmarsh had occupied the role responsible for safety within AWB and had done nothing to put in place appropriate processes, safe work method statements (SWMS), or resources before the lift was attempted. No adequate risk assessment was conducted, no SWMS was prepared, and no toolbox talk was held. The court noted that Whitmarsh was present on site and had a direct view of the AWB yard from his office, and therefore could and should have recognised the dangers posed by the methods being used.
A particularly significant finding concerned events after the incident: within a short period, AWB was able to produce appropriate SWMSs and conduct a toolbox talk, both of which were generated and led by Whitmarsh himself. The court reasoned that this demonstrated Whitmarsh had both the capacity and the authority to have ensured those measures were in place before the lift. His failure to do so amounted to a complete abdication of his duty as an officer under the WHS Act.
On the fourth element, that the failure exposed a worker to risk of death or serious injury, the court found this was beyond dispute. The failure to exercise due diligence undoubtedly exposed Mr Haywood to exactly that risk. The matter has been listed for a sentence hearing in July 2025.
Orders Made
- The elements of the offence set out in the Amended Summons were proved beyond reasonable doubt.
- Paul Whitmarsh was found guilty.
- The matter was listed for a sentence hearing in July 2025.
Key Takeaways
- Under s 27(1) of the WHS Act, an officer of a PCBU bears a personal duty to exercise due diligence to ensure the company complies with its safety obligations, and that duty can be prosecuted independently of the company's own liability.
- The District Court found that an officer's failure to put in place any safety processes, risk assessments, or SWMSs before a high-risk lift operation satisfied the due diligence element of a Category 2 offence, proved beyond reasonable doubt.
- Post-incident conduct can be probative: the court drew an adverse inference from the fact that appropriate safety documents and toolbox talks were produced by the same defendant very shortly after the fatal incident, indicating those measures were available and within his authority before it occurred.
- Physical presence on site is not required for a finding of due diligence failure; the court found it sufficient that the defendant had oversight of the worksite and the authority to require proper safety measures, yet took no proactive steps.
- A guilty plea by the corporate PCBU does not determine the outcome of a separate officer prosecution; each proceeding requires independent proof of the officer's personal failure to exercise due diligence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 165
- Corporations Act 2001 (Cth), s 9
Cases:
- Constantanidis v R [2022] NSWCA 4
- SafeWork NSW v Hetherington [2019] NSWDC 11
- WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349