Tread Carefully: Avoiding Liability For Safety Breaches In A Workplace

A person conducting a business or performing an undertaking (“PCBU”) with respect to their business have a ‘primary duty of care’ under the Work Health and Safety Act 2011 (NSW) (“WHS Act”). In the case of a corporation, this duty of care extends to its Officers.

This primary duty of care requires a PCBU to ensure the health and safety of all workers in a “reasonably practicable” manner. This obligation further extends to requiring PCBUs to ensure that they do not expose a person to a risk of death, serious injury, or illness.

Who is an ‘Officer’?

Relevantly, an Officer of a solvent company which operates a business includes its directors, company secretaries, or individuals that can make decision that affect a significant part of the business, or its financial standing.

The Court’s latest warning

The recent decision in the New South Wales District Court (“Court”) matter of SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 (“Doble Case”), serves as a warning to those who hold a duty of care.

On 4 November 2020, Mr Christopher Herden, a truck driver employed by Zentry Pty Ltd (“Zentry”) was working at a transport depot operated by Miller Logistics (“Miller”) in Tamworth. Mr Herden, was working at the depot, assisting a driver of a B-Double trailer located in the loading and unloading area. Mr Herden was struck in the head by a forklift and suffered serious injuries, including a fractured femur, hip and elbow.

SafeWork brought proceedings against Miller under section X the X Act, claiming that Miller (the PCBU), failed to comply with its primary duty of care by exposing its workers to the risk of death, serious injury, or illness specified.

SafeWork also joined Miller’s Director, Mr Mitchell Doble (“Mr Doble”)  to the proceedings on the basis that he was the relevant Officer of Miller, and he failed to exercise due diligence by failing to, so far as practicable, ensure compliance with the WHS Act.

Ultimately SafeWork was only successful in its claim against Miller

In its reasoning, the Court considered that Miller failed to provide:

1. A designated loading and unloading zone;
2. A designated and clearly marked forklift movement zone;
3. A designated and clearly marked pedestrian exclusion zone; and
4. A installation of a physical barrier to separate pedestrians

The Court also commented on Miller’s “3-Metre Rule” was far from sufficient, noting that this essentially implied to Miller’s workers to “look out for yourself”.[1]

 

Mr Doble – off the hook?

To succeed in its prosecution of Mr Doble, SafeWork was required to prove the following 4 elements beyond reasonable doubt:

• There is a corporate PCBU which has a duty or obligation under the WHS Act:
• The accused individual is an officer of that PCBU;
• The accused has failed to exercise ‘due diligence’ to ensure that the PCBU complies with that duty or obligation; and
• The failure to exercise due diligence exposes an individual to a risk of death or serious injury

SafeWork ultimately failed in its prosecution against Mr Doble. It was the 3^rd element which came to be SafeWork’s red herring. The Court was not convinced that SafeWork sufficiently proved that Mr Doblefailed to exercise due diligence to ensure that Miller complied with its primary duty of care duty. Instead, the Court believed that Mr Doble exercised due diligence by delegating its responsibilities to Miller’s Compliance Manager, James Hayter (“Mr Hayter”).

Despite Mr Doble being both the Managing Director and Sole Director of Miller, the Court did not consider that this meant he was required to “do everything that the PCBU had to do to ensure safety” and that there was no evidence which suggested that Mr Doble should not have trusted Mr Hayter to comply with his WHS obligations and duties.[2]

 

 

Key Takeaways

The Doble Case clarifies personal liability and its connection between a PCBU and its officers with respect to managing and complying with WHS standards. The Doble Case acts as a stern reminder to PCBUs of the importance of robust and sufficient resources and procedures which make all the difference in minimizing WHS issues and protecting your business from liability.

Our team of Workplace Law experts at Chamberlains Law Firm can save you the headache and assist your business with navigating all applicable obligations under the WHS Act. From the preparation of policies to conducting workplace WHS risk assessments and providing your business with ongoing support and advice, our team can do it all.

Contact Chamberlains Law Firm today to learn more about how we can assist you.

[1] at [239].

[2] [264]