SafeWork NSW v Paul Whitmarsh (No. 3)

[2025] NSWDC 150

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Paul Whitmarsh (No. 3) [2025] NSWDC 150

Hearing dates:

31 March, 1, 2, 3, 4, 7, 8 and 9 April 2025

Date of orders:

2 May 2025

Decision date:

02 May 2025

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The elements set out in the Amended Summons have been proved beyond reasonable doubt.

(2)   I find the defendant Paul Whitmarsh guilty.

(3)   The matter will be listed for a date in July 2025 for a sentence hearing.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

CRIMINAL LAW – prosecution – work health and safety – duty of officers – due diligence – risk of serious injury or death

OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director put in place no appropriate processes – director provided no appropriate resources – failure to verify PPE was in use

Legislation Cited:

Corporations Act 2001 (Cth) s 9

Criminal Procedure Act1986 (NSW) s 133

Evidence Act 1995 (NSW) s 165

Work Health and Safety Act 2011 (NSW) ss 19, 27, 32

Cases Cited:

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

Texts Cited:

Australian Standard 2550.1-2011 Cranes, hoists and winches – safe use

Australian Standard AS 4497:2018 Roundslings – synthetic fibre

B Hodgkinson SC, Directors’ and Officers’ Duty of Due Diligence Under Work Health and Safety Law, 2021

Melissa A Bailey et al, Occupational Health and Safety Law NSW, (3rd ed, 2016, LexisNexis)

Mitchell Tooma, Tooma’s Annotated Work Health and Safety Act 2011, (Thomson Reuters, 2017, 2nd Edition)

Safe Work Australia, Vessel-mounted cranes – Information Sheet, December 2015

SafeWork NSW, Code of Practice – Managing the risks of plant in the workplace, August 2019

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Paul Whitmarsh (Defendant)

Representation:

Counsel:
Mr M Cahill (Prosecutor)
Mr I Latham (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Wotton Kearney (Defendant)

File Number(s):

2023/0027880

Publication restriction:

Nil

JUDGMENT

Introduction

1. On 27 January 2021 AWB Contractors Pty Ltd (AWB), a marine and salvage contractor, was attempting to lift a yacht named “Crazy Train” from the water. In the course of that salvage operation the crane lift failed. The mast of the yacht struck and killed one of the workers Mr Max Haywood.

2. SafeWork NSW (SafeWork) has prosecuted AWB, alleging that AWB, being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with the duty exposed workers, in particular Mr Haywood, to a risk of death or serious injury contrary to s 32 of the WHS Act. Section 32 of the WHS Act creates what is known as a Category 2 offence.

3. AWB has pleaded guilty. It has yet to be sentenced on a disputed facts sentence hearing. AWB is now in liquidation.

4. In these proceedings SafeWork has prosecuted Mr Paul Whitmarsh alleging a breach of Mr Whitmarsh’s duty under s 27(1) of the WHS Act. SafeWork alleges that Mr Whitmarsh failed to exercise due diligence to ensure that AWB complied with its duty or obligation under s 19(1) of the WHS Act, because he failed to take reasonable steps to ensure that AWB had, so far as reasonably practicable, complied with its duty under the WHS Act.

The Task of this Court

5. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find.  I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process.  Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will.  I must then deliver my verdict according to the evidence.

6. The prosecution bears the onus of proving the guilt of the defendant at all times.  The defendant does not have to prove that he did not commit the offence charged.  If the defendant does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.  The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.

7. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.  The defendant then loses the presumption of innocence and I must find him guilty.  If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains presumed innocent and I must find a verdict of not guilty.  If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.

8. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence.  I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.

9. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act1986 (NSW).

10. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4.

The Amended Summons

11. The original Summons was filed on 25 January 2023. During the trial an Amended Summons was filed, to correct several typographical errors in the original pleading.

The Risk

12. Paragraph 31 of Annexure A to the Amended Summons pleads particulars of the risk as follows:

“The risk was a risk to workers, in particular Mr Poulton and/or Mr Haywood and/or Mr Wilson and/or Mr Noble, of death or serious injury as a result of being struck, and/or crushed, by the load or part of the load and/or by part of the crane and/or lifting device during a lifting operation.”

Failure To Exercise Due Diligence

Alleged Failure By AWB To Comply With Duty

13. Paragraph 32 of Annexure A to the Amended Summons pleads particulars of the failures of Mr Whitmarsh to ensure that AWB complied with its work health and safety duty under s19(1) of the WHS Act. The paragraph sets out the reasonably practicable steps which AWB should have taken to eliminate or minimise the risk. All of these particulars are admitted by Mr Whitmarsh, except for subpars (a)(i), (ii) and (iii), and (f) (Tcpt 20/15-50). The particulars are set out below (with a notation in square brackets to record the particulars which are not admitted by Mr Whitmarsh):

“32. The defendant failed to exercise due diligence to ensure that AWB Contractors Pty Ltd complied with its health and safety duty or obligation under section 19(1) of the Act because he failed to take reasonable steps (outlined at paragraph 33 below) to ensure that the company complied with its duty by taking one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively, to minimise the risk, if it was not reasonably practicable to eliminate) the risk:

(a) Undertaking and implementing an adequate risk assessment before work commenced on re-floating and recovery of Crazy Train, from the Rozelle Bay Maritime Service Centre, in preparation for the lifting of the vessel from the water and disposal of the vessel at the defendant’s premises, which included (but not limited to) any one or more of the following:

(i) Preparing a detailed estimate of the weight of the vessel in air and in water [not admitted];

(ii) preparing a detailed estimate of the weight of water the vessel may hold when submerged (i.e., the weight of the water that can be entrained within the vessel when submerged) [not admitted];

(iii) identifying the size of the crane and/or lifting device with any related plant and equipment (for example, not limited to, lifting slings, a portable crane scale/load cell however described) required to perform each of the projected lifts [not admitted];

(iv) identifying size of the crew required to perform the lift, together with the appropriate qualifications, training and experience required by the ‘lift crew’;

(v) identifying the risk of the vessel re-sinking and identifying appropriate controls, including, but not limited to, the scheduling of the re-floating and recovery of the vessel to the defendant’s premises at a date and time at which the appropriate crane/lifting and the appropriate lifting crew are available to lift the vessel out of the water at the defendant’s premises for subsequent disposal; and, also, identifying and ensuring that equipment necessary to keep the vessel afloat is available to be deployed;

(vi) identifying the need, if any, for a written lift plan in relation to the proposed lifts;

(vii) reviewing any existing Safe Work Method Statements applicable to the re-floating and lifting of vessels, including, but not limited to reviewing any generic safe work method statements relating to the operation of cranes and/or lifting devices to be used in the operations to ensure, as far as is reasonably practicable any such generic safe work method statements are up to date and appropriate for use in relation to the subject task.

(b) Requiring a Safe Work Method Statement be developed and enforced in response to the risk assessment as set out above in (a) which contained adequate information in relation to the risks and the controls relevant to performing the subject task;

(c) Further and in the alternative to (a) and (b) above, following the sinking of the vessel at the defendant’s premises, undertaking an adequate risk assessment before work commenced on the lifting of the vessel which included (but was not limited to) any one or more of the following:

(i) the above matters referred to from sub-paragraphs (a)(i) to (a)(vii);

(ii) identifying any additional and/or particular risks associated with the fact that the vessel was submerged suspended, either in whole or in part, from the stern of another vessel, including, but not limited to, the identification of hazards associated with crush or entrapment points; the instability of the vessel due to weather and/or vessel wash; and/or the failure of the mooring lines;

(iii) identifying the need for control of the vessel to be maintained during lifting and, in particular, that the need for the vessel be lifted evenly so that, during the lift, control and balance of the load is maintained;

(iv) identifying the need for appropriately qualified and experienced divers, if any, to be involved in the recovery of the vessel and/or lifting of the vessel to the surface of the water, including, but not limited to, the following:

a. the placement of lifting slings under the hull of the vessel and the connection of those slings to the crane hook and/or other lifting devices in preparation for the lift; and/or

b. other duties associated with the recovery and lifting of the vessel, such as observing the lift; observing the location of the slings; and observing and with the trim of the vessel during lifting;

(d) Further and in the alternative to (a) and (b) above, requiring a Safe Work Method Statement be developed and enforced in response to the risk assessment as set out above in (c) which contained adequate information in relation to the risks and controls relevant to performing the subject task;

(e) Further and in alternative to the steps set out in (a) to (d) above, requiring the recovery of Crazy Train, submerged, suspended in the water from the stern of Barge No. 1, to be planned, scheduled and conducted using any one or more of the following pieces of plant and/or equipment (in a manner consistent with relevant safe working loads and/or limits) in relation to the lifting of the vessel:

(i) a crane; and/or

(ii) other lifting device/s, such as the A Frame and/or salvage airbags;

and/or

(iii) lifting equipment, such as lifting slings or chains; and/or

(iv) the attachment or lifting points selected for use in the lifting of the vessel.

(f) Prohibiting workers from using any crane and associated equipment such as slings for a proposed lift of a submerged vessel (assuming the submerged vessel was filled with entrained water) which would exceed, or which would risk exceeding the safe working limits of the crane and/or other lifting device and/or associated lifting equipment [not admitted],

(g) Prohibiting workers from using lifting attachment points fittings and/or fixtures not designed for purpose of lifting the vessel, or otherwise designed as strong points capable of supporting the weight of the vessel, fittings and fixtures, including, but not limited to, the mast of a yacht;

(h) Engaging, as required, an appropriately qualified, trained and equipped dive team to assist in the conduct of the lifting of vessels to the surface of the water;

(i) Providing operators of a cranes or lifting devices used in the lifting of the vessel, including, but not limited to, the Mobile Crane with adequate training in relation to the crane or lifting devices, including, but not limited to:

(i) the controls of the crane or other lifting devices;

(ii) the installation and use of any additional operational aids or limiting devices for use in maintaining the operation of the crane or other lifting devices within the limits of its safe operation, including, but not limited to, the fitting and use of a po[r]table crane scale or load cell;

(iii) the working load limits of lifting equipment such as slings;

(iv) the load charts for the crane or other lifting devices; and

(v) Safe Work Procedures relating to the use of the crane or other lifting devices.

(j) Providing and maintaining use of Personal Protective Equipment (PPE) relevant to the performance of load lifting work in a marine environment, including, but not limited to:

(i) the wearing of a hard hat when working in proximity to a crane or lifting device;

(ii) a life jacket or life vest when working on and/or in proximity to water.

(k) Providing adequate training and/or instruction to the workers in relation to Safe Work Procedures/Safe Work Method Statement and the prohibitions referred to in sub-paragraphs (a) to (j) above and verifying related competencies on an initial and ongoing basis

(l) Providing adequate supervision for workers engaged in the conduct of the recovery and lifting of a vessel so as to ensure so far as is reasonably practicable that the subject works are conducted in accordance with the written safe work methods, such as a safe work method or procedure of the kind referred to in sub-paragraphs (b) and (d) which has been developed, authorised and promulgated by the defendant.”

Alleged Failure By Mr Whitmarsh To Comply With Duty Of Due Diligence

14. Paragraph 33 of Annexure A to the Amended Summons pleads particulars of the reasonable steps which Mr Whitmarsh should have taken to comply with his safety duty under s 27(1) of the WHS Act, as follows:

“33.   The reasonable steps which the defendant should have taken in exercising due diligence to ensure the company complied with its duties and obligations under the Act, included any one or more of the following:

(a)   Ensuring the company had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the company’s business or undertaking by:

(i)   undertaking an adequate risk assessment as outlined in sub-paragraphs (a) and/or (c) of paragraph 32, or requiring, instructing or directing the company to undertake an adequate written risk assessment, before work commenced on raising Crazy Train as outlined in sub-paragraphs (a) and/or (c) of paragraph 32 above:

(ii) obtaining the weight of Crazy Train from reliable records, or developing an estimate of the weight of Crazy Train on behalf of the company, or instructing or directing the company to obtain the weight of Crazy Train from reliable records, or to develop an estimate of the weight of Crazy Train;

(iii) planning, scheduling and conducting the recovery of Crazy Train in the manner set out in sub-paragraph (e) of paragraph 32 above, or requiring, instructing or directing the company to plan, schedule and conduct the recovery of Crazy Train in the manner set out in sub­paragraph (e) of paragraph 32 above;

(iv) prohibiting workers, from using unsuitable cranes (including associated equipment) or lifting points in relation to lifting vessels as set in subparagraphs (f) and (g) of paragraph 32 above, or requiring, instructing or directing the company to prohibit workers, from using unsuitable cranes (including associated equipment) or lifting points in relation to lifting vessels as set in subparagraphs (f) and (g) of paragraph 32 above;

(v) scheduling the lifting of Crazy Train on a date and at a time when a properly qualified dive team was available to assist in the lifting of Crazy Train, in accordance with sub-paragraph (h) of paragraph 32 above, or requiring, instructing or directing the company to schedule the lifting of Crazy Train on a date and at a time when a properly qualified dive team was available to assist in the lifting of Crazy Train, in accordance with sub-paragraph (h) of paragraph 32 above;

(vi) approving the cost of and providing, or requiring, instructing or directing the company to provide operators of the Mobile Crane with competency and skills based training and assessment of the kind provided to workers undergoing training and assessment for the purpose of obtaining a High Risk Work Licence to operate a crane with a maximum safe working limit greater than 20 tonnes;

(vii) putting in place a system for assessing on commencement and thereafter, from time to time, the skills and competency in the safe operation of the Mobile Crane of workers to whom the company assigned the task of driving the Mobile Crane, or requiring , instructing or directing the company to put in place a system for assessing on commencement and thereafter, from time to time, the skills and competency in the safe operation of the Mobile Crane of workers to whom the company assigned the task of driving the Mobile Crane;

(viii) providing training, information and instruction to workers so that they were aware of the risks associated with working with the Mobile Crane and performing crane lifts and the appropriate control measures to eliminate or minimise the risk requiring, instructing or directing the company to provide training, information and instruction to workers so that they were aware of the risks associated with working with the Mobile Crane and performing crane lifts and the appropriate control measures to eliminate or minimise the risk;

(ix) directing or instructing workers that:

i. the Mobile Crane is to be operated in compliance with the Load Charts for the crane;

ii. slings are to be selected and used in compliance with the applicable Working Load Limit; and

iii. the mast of a yacht is never to be used as a lifting point;

(x) Developing, authorising or approving and promulgating an adequate safe work method statement/s of the kid described in sub-paragraphs 32 (b) and (d) or requiring, instructing or directing the company to develop an adequate safe work method statement/s of the kind described in sub-paragraphs 32 (b) and (d) above and then authorising and promulgating the safe work method statement before work commenced on raising Crazy Train.

(b) Verifying by inspection and/or supervision that adequate PPE was available and in use during lifting operations, including a hard hat and, where operations were being conducted in proximity to water, a life jacket or life vest or requiring, instructing or directing the company to verify by inspection and/or supervision that adequate PPE was available and in use during lifting operations, including a hard hat and, where operations were being conducted in proximity to water, a life jacket or life vest;

(c) Instructing workers, in particular Mr Poulton, that work was not to commence on the lifting of Crazy Train until a risk assessment had been completed and a detailed safe work method statement had been prepared; the safe work method statement had been reviewed in accordance with the AWB Contractor Pty Ltd work health and safety management system; and the safe work method statement had been approved by the defendant;

(d) Verifying by supervision, visual inspection of works and/or inspection of documentation, that any one or more of the resources, processes and measures listed in subparagraph 31[sic:32] (a) (i) to (x) above were provided, implemented, maintained by the company and used by workers when engaged in work in the company’s business or undertaking work for, or on behalf of or under the influence and/or direction of the company.”

Exposure to a Risk of Death or Serious Injury

15. Paragraph 34 of Annexure A to the Amended Summons pleads that as a result of the failures of Mr Whitmarsh, workers and in particular Mr Haywood, were exposed to a risk of death or serious injury.

The Elements of the Offence Charged

16. Section 27 of the WHS Act deals with the duty of officers of a corporation. Section 27 provides as follows:

“27   Duty of officers

(1)  If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2)  Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3)  Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4)  An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5)  In this section, due diligence includes taking reasonable steps—

(a)   to acquire and keep up-to-date knowledge of work health and safety matters, and

(b)   to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c)    to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d)   to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e)   to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example—

For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

•  reporting notifiable incidents,

•  consulting with workers,

•  ensuring compliance with notices issued under this Act,

•  ensuring the provision of training and instruction to workers about work health and safety,

•  ensuring that health and safety representatives receive their entitlements to training.

(f)   to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).”

17. Section 4 of the WHS Act contains a definition of officer, which includes “an officer within the meaning of s 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership”.

18. The definition of “officer of a corporation” in s 9 of the Corporations Act 2001 (Cth) includes “a director or secretary of the corporation”. Mr Whitmarsh was the sole director and the secretary of AWB at the relevant time.

19. The elements of a Category 2 offence involving the failure of an officer to exercise due diligence under s 27 of the WHS Act are:

1. There is a corporate PCBU which has a duty or obligation under the WHS Act. This element is admitted by Mr Whitmarsh.

2. The accused individual is an officer of that PCBU. This element is admitted by Mr Whitmarsh.

3. The accused has failed to exercise “due diligence” to ensure that the PCBU complies with that duty or obligation.

4. The failure to exercise due diligence exposes an individual to a risk of death or serious injury.

20. In Occupational Health and Safety Law NSW, LexisNexis, par 2530.5 the learned authors say:

“Section 27 is a straightforward implementation of recommendation 40 of the First Report of the National Review, which was that a New Model Act should ‘place a positive duty on an officer to exercise due diligence to ensure the compliance by the entity of which they are an officer with the duties of care’ under the Act. The positive duty imposed by s 27 requires officers to be proactive and means that officers owe a continuous duty to ensure compliance with duties and obligations under the Act.”

21. The learned authors of that service also say at par 2530.30:

“The officer’s duty is to exercise due diligence to ensure that the PCBU complies with the PCBU’s duties or obligations (subsection 27(1)). This ordinary grammatical meaning is further extended by subsection 27(5) of the Act. The definition is framed in an ‘inclusive’, rather than ‘exclusive’, way. Due diligence now includes knowledge of work health and safety matters, understanding the hazards and risks associated with the business or undertaking’s operations, and resources and processes to eliminate or minimise the risks. Unlike s 26 of the OHS Act 2000 which required that the relevant company actually contravene the legislation, it appears an officer may be guilty under s 27 of the Act simply by failing to exercise due diligence, even if the company itself has not been charged or been found guilty of a breach. Due diligence also concerns information about incidents, hazards and risk, processes for complying with the PCBU’s duties and obligations, and arrangements to verify the provision and use of resources and processes.

The standard of care prescribed for officers in s 27 is ‘due diligence’. The Oxford English Dictionary defines the word ‘diligence’ as, simply: Constant and earnest effort to accomplish what is undertaken; persistent application and endeavour; industry, assiduity.

Subsection 27(5) requires an officer to be proactive in acquiring and keeping up-to-date knowledge of work health and safety matters and ensuring the PCBU has, and implements, processes for complying with any duty or obligation the PCBU has under the Act. It is a high standard to be reached. It does not place the officer directly in the position of the corporation, but requires the officer to be actively engaged in the governance of the corporation.”

22. The learned author of Tooma’s Annotated Work Health and Safety Act 2011, Thomson Reuters, 2nd Edition expresses (in par 27.10) similar views to the matters set out above from the LexisNexis practice book.

23. Paragraph 33 of the Amended Summons specifically pleads the steps which SafeWork alleges Mr Whitmarsh should have taken to exercise due diligence.

24. Paragraph 33(a) of the Amended Summons pleads that Mr Whitmarsh should have “had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the [AWB] business or undertaking”. Paragraph 33(a) of the Amended Summons then lists ten steps which should have been taken by Mr Whitmarsh to ensure due diligence in this regard.

25. Paragraph 33(a) of the Amended Summons picks up the words of s 27(5)(c) of the WHS Act, which provides that due diligence includes taking reasonable steps “to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking”.

26. Subparagraphs 33(b) and (d) of the Amended Summons plead that Mr Whitmarsh should have exercised due diligence by inspection and supervision.

27. Subparagraphs 33(b) and (d) of the Amended Summons pick up the words of s 27(5)(f) of the WHS Act which provides that due diligence includes taking reasonable steps to verify, by inspection and/or supervision, that the PCBU has, and implements, processes for complying with the safety duty of the PCBU.

28. Subparagraph 33(c) of the Amended Summons pleads that Mr Whitmarsh should have exercised due diligence by instruction of workers.

29. Subparagraph 33(c) is based upon s 27(5)(c) of the WHS Act, which requires an officer to ensure that a person carrying out the business has available for use and uses appropriate resources and processes to eliminate and minimise risks to health and safety. Subparagraph 33(c) is also based upon s 27(5)(e) of the WHS Act which requires an officer to ensure that the person conducting the business has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking. An “Example” included in s 27(5)(e) is “ensuring the provision of training and instruction to workers about work health and safety”.

30. In WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349, Staunton J held at [131]-[134] that:

“[Due diligence] is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established. Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safety standards established are in fact being adhered to and under ongoing review.”

31. Judge Scotting considered the scope of the duty imposed by s 27 of the WHS Act in SafeWork NSW v Hetherington [2019] NSWDC 11. His Honour said at [37]-[45]:

“37 The scope of the duty imposed by section 27 of the Act has not been authoritatively determined. The following matters appear to be non-controversial.

38 First, the section 27 duty is radically different to its predecessor section 26 Occupational Health and Safety Act 2000, which deemed a director on proof of a contravention by the company. The first report of the Stewart-Crompton Panel (the First Report) described section 27 as requiring an officer to be proactive to ensure compliance by the company, making the officer liable for their own acts or omissions. The approach was intended to require proactive steps by the officer for compliance by the company, with the duties of care placed on the company.

39   In McKie v Al-Hassani [2015] ACTIC 1 Chief Industrial Magistrate cited with approval the following relevant passage from Barry Sherriff and Michael Tooma, (Understanding the Model Work Health and Safety Act) (Wolters Kluher):

The approach taken by the model WHS Act, however, emphasises the corporate governance responsibilities of officers. The personal liability in that context reflects culpability of company officers in failing to meet the corporate governance responsibilities by preventing corporate misconduct. Consistent with this rationale, officers under the model laws will have a duty to ensure due diligence. Thus, their attributed liability is transformed into a positive duty to ensure compliance through sound corporate governance.

40 Second, ‘due diligence’ is defined to include taking reasonable steps to achieve the objectives set out in section 27(5)(a)-(f), but the definition of due diligence is not closed. ‘Due diligence’ in the context of the Corporations Act 2001 (Cth) has been defined as a minimum standard of behaviour involving a system which provides against contravention of relevant regulatory provisions and adequate supervision ensuring that the system is properly carried out: Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531.

41    In Inspector Kumar v Ritchie [2006] NSWIRComm 323 at [153] Haylen J considered that the due diligence defence provided for by section 26 Occupational Health and Safety Act 2000 required a systematic approach designed to achieve compliance with the regulatory scheme and to prevent contravention of it, that the system was appropriate and not a paper system designed to pay lip service to the Act and that the system was properly enforced to achieve compliance with the Act.

42    In WorkCover Authority v Daly Smith Corporation [2004] NSWIRComm 349 at [152] Staunton J described the due diligence defence as requiring that the person had put in place a system to identify and manage the risk to safety at the employer’s worksite. It involved ensuring that the workers had the skills to perform the work and ensuring that they complied with the safety standards established, by formal and informal review and auditing.

43     In Inspector Aldred v Herbert [2007] NSWIRComm 170 at [25] Backman J held that it was sufficient due diligence for directors to address safety matters at board meetings, to require managers to report on safety matters and to monitor safety as an issue.

44    In Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163 at [188] Boland P was not satisfied that the due diligence defence was established because there was no review or auditing process to ensure that the supervisors and managers were acting in compliance with the written policies.

45 Third, the exercise of due diligence and what are reasonable steps will be determined to some extent by the officer’s place in the corporate structure and their ability to control the objectives outlined in section 27(5)(a)-(f).”

32. Further, at [56]-[58], Judge Scotting said:

“56 The section 27 duty imposed on officers is not to take all reasonably practical measures to ensure compliance by the PCBU and an officer is not required to ensure the health and safety of workers.

57 An officer is required to adhere to a minimum standard of behaviour involving a system which ensures compliance by the PCBU with its duties and obligations under the Act and to provide adequate supervision to ensure that the system is properly carried out. The minimal standard of behaviour and the system is to take reasonable steps to include the objectives in section 27(5)(a)-(g).

58 Section 27 does not require that the officer undertake the reasonably practicable measures on behalf of the PCBU. A breach of section 27 by an officer is not dependent on a breach of another duty owed by the PCBU.”

33. During final submissions, counsel for Mr Whitmarsh handed up a paper by Mr B Hodgkinson SC entitled “Directors’ and Officers’ Duty of Due Diligence Under Work Health and Safety Law”.

34. At p 5 of the paper Mr Hodgkinson SC says:

“Much of the confusion as to the scope of the Officers’ duty of due diligence has been caused by regulators who pursue actions under s 27 as though it imposes on the Officer the same duty imposed by s 19 on a PCBU. It is clear from a consideration of s 19 and s 27 that the duties are different. In short form, an Officer is required under s 27 to understand the PCBU to the extent of being able to identify the risks and hazards associated with its business or undertaking and to ensure that the PCBU has the necessary systems and resources to meet its s 19 primary duty of care.”

35. After a careful analysis of recent s 27 cases, Mr Hodgkinson SC sets out the following list of common omissions by a director, which have amounted to a failure to exercise due diligence:

1. Failure to take reasonable steps to take note of obvious, clear, foreseeable and known risks;

2. Failure to take reasonable steps to supervise;

3. Failure to take reasonable steps to induct and train workers;

4. Failure to take reasonable steps to modify machinery to prevent injury;

5. Failure to take reasonable steps to become aware of prior incidents or near misses;

6. Failure to take reasonable steps to provide adequate Personal Protective Equipment (PPE) and require it to be worn, or to provide protection equipment (such as edge protection on unguarded platforms).

36. I respectfully agree with Mr Hodgkinson SC that the cases cited by him are authority for the list of six summarised immediately above.

37. At p 12 of the paper Mr Hodgkinson SC sets out a further nine examples, from the cases, of failures to exercise due diligence by failing to take reasonable steps to:

1. direct workers not to begin work or to stop work until the site is safe or adequate PPE/protections are available;

2. conduct formal and documented risk assessments, or verify that risk assessments have been conducted;

3. provide Safe Work Method Statements (SWMSs) and/or Safe Work Operating Procedures (SWOPs), or ensure that workers were aware of the existence and contents of such SWMS and SWOPs;

4. obtain operating manuals for machinery;

5. provide adequate signage to warn workers of the risks associated with machinery;

6. independently check that WHS policies and records (if overseen by another employee) are maintained;

7. control the interaction and effective separation of pedestrians and mobile plant;

8. provide that a competent person be present at site before work commences; and

9. create processes which ensure that workers do not engage in activity outside their area.

38. I respectfully agree with Mr Hodgkinson SC that the cases cited by him are authority for the list of nine summarised immediately above.

39. Mr Hodgkinson SC expressed his conclusions on p 13 of the paper as follows:

“I will leave you with four brief statements regarding the s 27 duty of due diligence.

First, beware of prosecutions which equate the PCBU’s duty of primary care under s 19, and Officers’ duty of due diligence under s 27. It is likely that the court will identify that the duties imposed on Officers are different to those imposed on PCBU’s or the duties themselves are different. If the duties are in fact the same then s 27 is little more than a deeming provision, by which I mean that the Officer would be deemed guilty of the PCBU’s breach.

Second, conceptualise s 27 instead as imposing a duty to ‘ensure to ensure’. By that, I mean the s 27 duty of due diligence is one which will require the Officer to take steps to equip the PCBU with the necessary systems and resources so that the PCBU itself can meet its relevant duties and obligations.

Third, Officers must take steps which enable them to understand the risks and hazards associated with the business or undertaking in which the PCBU is involved. They must be aware that the PCBU is taking appropriate steps to ensure that no one is exposed to a risk to their health and safety as a consequence of those risks and hazards.

Fourth, it seems that the s 27 duty of due diligence imposes on Officers the duty to take reasonable steps to, at the least: ensure those under them carry out their own duties properly, confirm the existence of and review WHS documents, become aware of prior incidents, supervise and train workers, and to ensure that plant is safe and personal protective equipment is provided and worn.”

40. I respectfully agree that the conclusions expressed by Mr Hodgkinson SC immediately above are an accurate statement of how to conceptualise the duty of an officer of a corporation under s 27 of the WHS Act.

Criticism of the Pleading in the Amended Summons

41. In final submissions, counsel for Mr Whitmarsh was critical of the form of the Amended Summons, saying that it conflated the duty owed by AWB with the due diligence duty owed by Whitmarsh. It was submitted that the pleading purported to impose upon Mr Whitmarsh a duty to do what AWB should have done. I reject that submission.

42. Paragraph 32 of the Amended Summons quite clearly sets out a list of breaches by AWB of its duty under s 19(1) of the WHS Act. This was sufficiently well understood by Mr Whitmarsh for him to make admissions that AWB had breached its duty, except in four particular respects, which are identified above.

43. Paragraph 33 of the Amended Summons pleads the reasonable steps that SafeWork alleges Mr Whitmarsh should have taken to exercise due diligence to ensure that AWB complied with its duties and obligations under the WHS Act. Paragraph 33 then contains four subparagraphs, each of which are clearly an allegation that there were steps that Mr Whitmarsh personally should have taken to exercise due diligence. Paragraph 33(a) pleads that Mr Whitmarsh should have ensured the company had in place and used appropriate processes and resources. Paragraph 33(b) pleads that Mr Whitmarsh should have verified by inspection or supervision that adequate PPE was available and in use during lifting operations. Paragraph 33(c) pleads that Mr Whitmarsh should have instructed workers, in particular Mr Poulton, that work was not to commence on the lifting of Crazy Train until a risk assessment had been completed and a detailed SWMS had been prepared. Paragraph 33(d) pleads that Mr Whitmarsh should have verified by supervision, visual inspection of works or inspection of documentation that one or more of the resources, processes and measures listed in par 32(a) were provided, implemented, and maintained by AWB and were used by workers when engaged in AWB work.

44. For those reasons I find that the Amended Summons adequately pleads the elements of the s 27 offence. While some of the subparagraphs in pars 32 and 33 are lengthy, they are in English which is plain enough for Mr Whitmarsh to understand the particulars of the charge brought against him. Counsel for Mr Whitmarsh submitted that the reasonable steps pleaded in par 33 of the Amended Summons were “all obligations upon the company”. Paragraph 33 does not say that. The four subparagraphs in par 33 of the Amended Summons are preceded by the words:

“The reasonable steps which the defendant should have taken in exercising due diligence to ensure the company complied with its duties and obligations under the Act included any one or more of the following: …”

45. These opening words mirror the words of s 27(1) of the WHS Act. I have set out above my analysis of the subparagraphs of par 33 of the Amended Summons and indicated which aspects of due diligence, set out in s 27(5) of the WHS Act, relate to each subparagraph in par 33.

Issues

46. The issues for determination are:

1. Did AWB fail to comply with its duty under the WHS Act?

2. Did Mr Whitmarsh fail to exercise “due diligence” to ensure that AWB complied with its duty or obligation under the WHS Act?

3. Did the failure to exercise due diligence expose an individual to a risk of death or serious injury?

The Facts

47. Mr Whitmarsh admitted 156 facts which are set out in the “Agreed Statement of Facts” (ASF) in PX 1, Tab 1.

48. SafeWork relies upon those admitted facts, and upon the facts established in the oral evidence and the documentary evidence. SafeWork called evidence from the following witnesses:

1. Mr Matthew Poulton, Mr Curtis Wilson and Mr Brinn Noble, who worked with Mr Haywood on the day he died.

2. Mr Stuart Millar and Mr John Davis, who crewed the work boat “Ability”.

3. Mr John Mitchell, Mr Bradley Shadlow and Mr Michael Quinlan, who worked as the crew of the No. 1 Barge until they resigned in December 2020.

49. All eight lay witnesses who gave evidence for SafeWork impressed me as truthful, credible and reliable. Much of their evidence was simply to confirm matters recited in the ASF or to explain some of the many photographs which were tendered by SafeWork. Each witness gave evidence of the type of work they did generally and the particular work they did on the day of the incident. With one exception (a conversation which Mr Poulton said that he had with Mr Whitmarsh – see MFI 8, par 69), no significant challenge was made in cross-examination to the credibility and reliability of any of these witnesses. All of the witnesses were careful not to overstate their involvement or their memory of the events. The evidence of each witness was generally consistent with the evidence of every other witness.

50. SafeWork also called evidence from Mr Justin McPherson, an expert retained by the prosecutor. His two reports went into evidence (PX 14 and PX 15). Mr McPherson was cross examined by audio visual link (AVL). His evidence is dealt with in more detail below. I record at this stage that I found Mr McPherson to be a dispassionate and careful expert witness. I accept his evidence.

51. SafeWork and Mr Whitmarsh also tendered a large number of documents which are referred to below.

Findings of Fact: Agreed Matters

52. Since there was so little in dispute as to the facts, I will set out below my factual findings and indicate the evidence which supports those findings. In the case of the ASF, I will simply refer to the admitted fact by reference to a paragraph number in PX 1, Tab 1 (eg ASF 1, ASF 2 etc). Many of the Agreed Facts were confirmed by the lay witnesses, but in the light of the admissions made, I will not make additional reference to the oral evidence which was consistent with an Agreed Fact, I will simply note the ASF paragraph number.

AWB Contractors Pty Ltd

53. AWB was registered on 24 September 2002. (ASF 6)

54. Mr Whitmarsh was the sole director and the company secretary of AWB. (ASF 8)

55. AWB carried on a business or undertaking as a contractor specialising in marine construction and salvage work from premises at Gate 3 James Craig Road, Rozelle (the premises) and employed about 10 workers including office staff. (ASF 9)

56. AWB was the operator of Barge No. 1. (ASF 10)

The AWB Yard

57. The AWB Yard is situated on James Craig Road in Rozelle. The layout can best be understood by reference to the PolAir Helicopter photograph of the site taken on the day of the incident (PX1, Tab 3, photo 2). The yard is situated on the northern side of Rozelle Bay. Next to James Craig Road there is a large office and a hardstand which runs south towards the water. On the hardstand is a crane (referred to in the evidence as the yard crane). Moving from land to the harbour, there is what appears to be a floating pontoon accessed by a gangway, and then several barges. Barge No. 1 is situated towards the bottom left of the photograph. At the stern of Barge No. 1 can be seen the A-Frame Sheer Legs. In the middle of Barge No. 1 is the barge crane. Moored to the starboard of Barge No. 1 is the rectangular work punt. The sunken outline of Crazy Train can be seen immediately adjacent to the stern of Barge No. 1.

Australian Wharf & Bridge Pty Ltd

58. Australian Wharf & Bridge Pty Ltd (Wharf & Bridge) was incorporated on 1 December 1980. (ASF 1)

59. Mr Whitmarsh was the sole director, the company secretary and the sole shareholder of Wharf & Bridge. (ASF 2)

60. Wharf & Bridge carried on its business or undertaking from the premises. (ASF 3)

61. Wharf & Bridge held an Australian Maritime Safety Authority Certificate of Operation, issued pursuant to the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) and the Marine Order 504 (Certificate of Operation - National Law) 2018, in relation to the operation a fleet of seven commercial vessels, including the No. 1 Barge. (ASF 4)

The Business Name “Australian Wharf & Bridge”

62. The business name “Australian Wharf & Bridge” was registered on 11 February 2003, to a partnership, in the names of AWB and Wharf and Bridge. (ASF 14)

AWB Contracts to Salvage and Dispose of Vessels

63. AWB was contracted from time to time by Transport for NSW (TfNSW) to remove and dispose of vessels impounded at the Transport for NSW Maritime Service Centre at Rozelle (TfNSW Rozelle). (ASF 12)

64. The work which AWB contracted to perform included:

1. righting vessels,

2. pumping out water to re-float vessels,

3. towing vessels to the premises,

4. lifting vessels out of the water at the premises, and

5. cutting up vessels and placing the refuse in bins at the premises for legal disposal. (ASF 13)

PLW Holdings Pty Ltd

65. PLW Holdings Ply Ltd (PLW Holdings) was registered on 10 September 2002. (ASF 15)

66. Mr Whitmarsh was the sole director and company secretary of PLW Holdings. (ASF 16)

67. The business name “Ability Barge Services” was registered in the name of PLW Holdings on 22 January 2003. (ASF 17)

68. PLW Holdings trading as Ability Barge Services carried on business from the premises. (ASF 18)

Mr Paul Whitmarsh

69. In or around 1997, Mr Whitmarsh purchased all of the shares in Wharf and Bridge. (ASF 19)

70. At all material times, Mr Whitmarsh was the holder of the following licences relevant to his work in marine salvage:

1. High Risk Work Licence, HRW 168109 C2, in relation to the operation of Slewing mobile cranes (up to 20 tonnes) - expiry date 28 March 2004;

2. Restricted Demolition Licence AD204313 - 6 June 2006 - 4 August 2022 issued in the name of AWB Contractors Ply Ltd which listed Mr Whitmarsh as a supervisor.

3. General Boat Driving Licence expiring 3 February 2023. (ASF 20)

The AWB WHSE Manual (DX1, Tab 1)

71. As at 27 January 2021, AWB had in place a Work Health Safety and Environmental Manual (incorporating a Quality Assurance Manual) Issue Number A2 (AWB WHSE Manual). (ASF 21)

72. Prior to the date of the incident, the AWB WHSE Manual was last revised on 14 October 2016. (ASF 22)

73. A soft copy of the AWB WHSE Manual was stored on the AWB computer system and a hard copy was stored in the offices at the premises. (ASF 23)

74. On 25 October 2016 the AWB WHSE Manual, dated 14 October 2016 was accredited under the Master Builders Association OSHMS Accreditation Scheme. This accreditation expired on 25 October 2017. (ASF 24)

75. Section 1 of the AWB WHSE Manual, signed by Mr Whitmarsh as Managing Director, said that the Management of AWB recognised the prime importance of providing a safe working environment. Section 1 said: “We are committed to providing a safe working environment, safety awareness and safe work practices during all work performed on our behalf.”

Responsibilities of the Managing Director

76. The AWB WHSE Manual provided (DX1, Tab 1, pp 12-13) that the following “Work Health Safety and Environmental” (WHSE) responsibilities were allocated to Mr Whitmarsh in his capacity as the Managing Director of that company:

1. Identifying personnel responsible and qualified for WHSE processes

2. Leading by example and promoting WHSE at every opportunity

3. Authorising the WHSW Management System

4. Authorising WHSE expenditure

5. Allowing for enough time and sufficient resources to implement the organisation’s WHSE Management System

6. Stopping, rejecting or quarantining unsafe work methods, work areas, materials, plant and equipment

7. Ensuring WHSE considerations are included in all quotations, tenders and other business development activities as well as Material/Equipment Purchases

8. Approval of Work Method Statements and Risk Analysis

9. Commitment to continual improvement and allocating resources to deal with WHSE issues (ASF 25)

Responsibilities of the WHSE Manager

77. AWB did not employ a WHSE Officer (ASF 26) or WHSE Manager.

78. The AWB WHSE Manual does not nominate a person as the WHSE Manager.

79. Counsel for SafeWork submitted that Mr Whitmarsh placed himself at the centre of the safety system of AWB. I accept that submission, which was not disputed. As Mr Whitmarsh had taken on all responsibility for the Safety Management System of AWB, he also had the responsibilities of the WHSE Manager which are set out at DX 1, Tab 1, p 14. These responsibilities included:

1. Developing, implementing and maintaining the WHSE Management System

2. Defining the AWB WHSE policies and objectives

3. Leading by example and promoting WHSE at every opportunity

4. Managing compliance with WHSE, regulations, standards and codes

5. Acquiring and disseminating WHSE and related information

6. Facilitating Tool Box Talks on a regular basis

7. Conducting project inductions, Tool Box Talks and daily team briefings

8. Ensuring all site personnel are trained in the work procedures

9. Planning and conducting WHSE training, including induction task and refresher training

10. Identifying hazards and assessing and controlling WHSE risks

11. Preparing and implementing Work Method Statements (also known as a Safe Work Method Statement or SWMS)

12. Verifying by inspections that work areas, work methods, materials, plant and equipment comply with WHSE legislation, regulations, standards and codes

13. Stopping, rejecting or quarantining unsafe work methods, work areas, materials, plant and equipment

14. Providing advice and assistance on WHSE to all employees

15. Having authority to resolve all safety matters on behalf of AWB.

Job Analysis, Hazard Identification and Safe Work Method Statements

80. The AWB WHSE Manual said, (DX1, Tab 1, p 30) with respect to job analysis and hazard identification:

“To help find all potential hazards, the job will be broken down into activities that follows the sequence of construction. These activities are provided in a Safe Work Method Statement (SWMS), which is a list of job procedures, and other work-related practices. The SWMS details the job steps involved in each of the work activities, as well as the Hazard Rating Factor and Risk Rating.” (ASF 27)

81. The AWB WHSE Manual also provided (DX1, Tab 1, p 30) that to assist in the process of hazard identification, job analysis and the development of safe work method statements the following resources were to be used:

1. Analysis of illness/injury and incidents that have occurred in the past and recognised high risk work.

2. Consultation (e.g. Tool Box Talks) with workers experienced in the task to identify what they consider to be potential safety issues

3. Inspection of the area for specific hazards

4. Review of all applicable information, such as Material Safety Data Sheets and Manufacturer Supplier Specification Sheets to identify the WHSE hazards involved and precautions required

5. WorkCover and Codes of Practice and other publications e.g. safety alerts

6. Experience and knowledge of WHSE Manager. (ASF 28)

82. In relation to the preparation and authorisation of SWMSs, the AWB WHSE Manual provided (DX1, Tab 1, p 32) that work was to not proceed until the following three criteria were satisfied:

1. a SWMS had been reviewed and authorised by the Managing Director (i.e. Mr Whitmarsh);

2. the SWMS had been submitted to and approved by the principal contractor; and

3. the SWMS had been reviewed and signed by the relevant workers to indicate that they understand and are willing to implement the controls identified in the SWMS so as to carry out the work safely. (ASF 29)

83. There was no SWMS for the lifting of Crazy Train on the day of the incident.

Daily Job Safety Analysis and Toolbox Talks

84. The AWB WHSE Manual provided (DX 1, Tab 1, p 32) that in addition to the SWMS each crew was required to set out the proposed work activities for each stage of the project by completing the Daily Job Safety Analysis Card. That Card could be completed “during the normal Tool Box Talk that occurs at the commencement of the shift”. A proforma Daily Job Safety Analysis Card is at DX 1, Tab 1, p 46.

85. There was no Daily Job Safety Analysis Card for the work involved in lifting Crazy Train performed on 27 January 2021. Nor was there a Toolbox Talk which occurred at the commencement of the shift.

Training

86. Section 9 of the AWB WHSE Manual dealt with “Training” (DX1, Tab 1, p 56). It said that AWB was committed “to ensuring that its employees and sub-contractors are adequately trained to a level of competency sufficient to ensure their health and safety when at work.” Records of WHSE training would be maintained and kept for at least three years.

87. AWB was to maintain a training/competency register of all employees, together with copies of applicable certificates, licences and other assessments for employees.

The No. 1 Barge

88. The No. 1 Barge was registered in the name of Wharf & Bridge, but the No. 1 Barge was not managed or operated by Wharf & Bridge. (ASF 5). AWB was responsible for the day-to-day operations conducted on board the No 1. Barge, including the salvage operations. (ASF 11)

89. The No. 1 Barge was a dumb, or non-propelled, barge measuring 21.00 metres long; 9.00 metres wide; and 2.1 metres in hull depth. (ASF 45)

90. The No. 1 Barge was located on the water adjacent to the premises, or was towed to other locations for particular jobs. The No 1. Barge was brought into service in about 2003. (ASF 46)

Safety Management System for No. 1 Barge (PX1, Tab 23)

91. The Safety Management System for the No 1. Barge (Barge Safety Management System) was in tendered in evidence. References below to page numbers are to the page numbers inserted in red on the exhibit. The Manual said (p 7):

“The Company Management recognises the prime importance of providing a safe working environment. We are committed to providing a safe working environment, safety awareness and safe work practices during all works performed on our behalf.

People are our most important asset and their health and safety is our greatest responsibility.”

Responsibilities of the Managing Director

92. The Barge Safety Management System (p 8) assigned the safety management functions in relation to the operation of the No 1. Barge as follows:

“The Managing Director is ultimately responsible for the activities of the company and therefore should be involved in

- Identifying personnel responsible and qualified for SMS (Safety Management System) processes and delegating in writing

- Authorising of the SMS and other OH&S policies

- Allowing for enough time and sufficient resources to implement The Company’s (AWB Contractors Pty Ltd) SMS.” (ASF 30)

93. Prior to the date of the incident, the Barge Safety Management System was last reviewed and revised in or about May 2019 (ASF 31).

Responsibilities of the Designated Person

94. Mr Whitmarsh was listed as the ‘Designated Person’ in the “Barge Operations Flip Chart” (p 26). The Barge Safety Management System (p 9) said that the Designated Person “looks after the safe operation of the vessels in the company’s fleet and is responsible for the SMS.” The Designated Person was to ensure:

1. That the Barge Safety Management System is in place and working.

2. That the vessel and the crew are operating safely.

3. That the vessel and the crew have what they need to run safely and efficiently.

4. That there was to be regular review and training of the Barge Safety Management System.

Emergency Contact Numbers

95. The Emergency Contact Numbers in the Barge Safety Management System (p 24) nominated Mr Chris Purser as the “OHS Manager” (ASF 32).

96. Mr Purser was employed by PLW Holdings supplying services to Mr Whitmarsh and AWB in relation to the management of payroll and associated tasks (ASF 33). Mr Purser’s role with PLW Holdings did not involve any responsibility for the management of work health and safety (ASF 34). Mr Purser was not employed in a management or operational role in relation to the business or undertaking conducted by AWB and Mr Purser did not actively participate in the management of work health and safety in the business or undertaking conducted by AWB (ASF 35).

Barge Mounted Crane

97. In relation to “Barge Mounted Cranes” the “Barge Operations Flip Chart” provided as follows (p 36):

“Barges often have a crane mounted and secured on the deck.

Cranes require a skilled and trained operator and should not be operated by any person who lacks these skills.

Cranes can move without warning so if you are not involved with the function of the crane KEEP CLEAR.

As with all vessel mounted cranes the operation of the boom and attached load can affect the stability of the vessel.

The barge crew and crane operator must constantly monitor the sideways heel or roll and the pitch fore and aft of the vessel. Crew should warn the crane operator if the barge is in a dangerous condition.” (ASF 36)

Training

98. In relation to training, Part 6.1.1 of the Barge Safety Management System provided (p 10) that:

“Employees undergoing training where practical experience is part of the assessment criteria, such as crane driver licensing and helm control, will be provided with appropriate supervision and opportunity to develop their skill. These practical sessions will be recorded and signed off by the Supervisor.” (ASF 37)

99. Prior to and as at the date of the incident, no records were maintained with respect to the “on-the-job” training provided to workers, including on-the-job training in relation to operation of cranes. (ASF 38)

100. The responsibility for training was allocated by the Barge Safety Management System to the “Training Officer” (p 10). The Manual did not nominate any person as the Training Officer.

101. In relation to the authorisation of documents, the Barge Safety Management System provided (p 20):

“All Safety Management System [SMS] documents, including procedures, work instructions, checklists. forms and electronic data must be approved by the Managing Director before use and be made available at all appropriate locations and to all applicable personnel.” (ASF 41)

102. SMS related documents were defined (p 21) to include “Safety Procedures”, “Safe Operating Procedures, including Standard Safe Work Method Statements” and “Specifications of the Barge and Crane for reference”. (ASF 42)

Crane Barge Introduction Manual

103. AWB had in place a Crane Barge No. 1 Introduction Manual (Crane Barge Introduction Manual) (ASF 39). This document was not put into evidence.

104. The Crane Barge Introduction Manual provided as follows:

“Pennine Crane

This crane may be carried by the barge and is dogged down by bottle shackles. This crane may only be operated by a qualified person ACCORDING TO THE LOAD CHARTS.” (ASF 40)

The A-Frame or Sheer Legs

105. The No. 1 Barge was fitted with a steel “A-Frame”, also known as “Sheer Legs” and an associated winch. (ASF 47)

106. The A Frame was fixed in position adjacent to the stern of the No. 1 Barge. (ASF 48)

107. The A Frame was designed for use in the pulling of piles from the seabed and for heavy lifts performed close to the stern of the No. 1 Barge. (ASF 49)

108. The maximum rated capacity of the A Frame was 50 tonnes for pile testing and general use. (ASF 50)

109. As configured with a hook and ten falls of wire rope, the stated maximum capacity of the “A-Frame” and its associated winch was 50 tonnes. (ASF 51)

The NCK-Rapier Pennine C34 Crawler Crane

110. A NCK-RAPIER Pennine C34 Mobile Crane Serial No 3HD604 (the Barge Crane) was permanently attached, via adjustable turnbuckles, to Barge No. 1. (ASF 52)

111. The specifications for the Barge Crane were set out in the NCK-RAPIER Pennine C34 Crawler Mounted Lift Crane Manual Publication No C34/1 (ASF 53). This Manual was an attachment to the Barge Safety System (PX1, Tab 23 pp 59-66). It was also separately tendered: PX2, Tab 27. The Manual contained a radius diagram (PX 1, Tab 23, p 62) and Load Charts (p 63).

112. The Barge Crane was positioned along the centreline of the No. 1 Barge, equidistant from the port and starboard sides. The centre of the crane was positioned 9.69 metres from the bow of the barge and 11.31 metres from the stern of the barge. (ASF 54)

113. Two Load Charts (identical to those in the Crane Manual) were fitted to the interior of the operator’s cabin (PX1, Tab 5, Photos 14, 18 and 19). The Load Charts show the lifting capacity of the crane at various radii, when operating on land, as prescribed by the manufacturer (ASF 55).

114. The two Load Charts displayed the maximum capacity of the crane, as specified by the manufacturer, for various jib configurations and lift radii. (ASF 56)

115. The Load Charts displayed on the Barge Crane were the load charts issued by the manufacturer with respect to land-based operation of the Barge Crane. (ASF 57)

116. There was no glass in the front window of the Barge Crane. (ASF 58)

117. The cabin of the Barge Crane was labelled to indicate that the “SWL”, or “Safe Working Limit” of the crane was approximately “34 tonnes”. (ASF 59)

118. According to the Load Chart (75% of tipping load), when configured with a 9.1m jib, the Barge Crane had a maximum SWL, or Maximum Rated Capacity, of approximately 34 tonnes (i.e. 34, 360 kg) at a lift radius of 3.1m. (ASF 60)

119. According to the Load Chart (75% tipping load), when configured with a 27.4 metre jib, the Barge Crane had a maximum SWL, or Maximum Rated Capacity, of approximately 11 tonnes (i.e. 11,290 kg) at a lift radius of 6.1m. (ASF 61)

120. The manufacturer said (p 62) that:

“The weight of the hook blocks, slings and any handling devices must be considered as part of the load when determining the capacity of a liftcrane.” (ASF 62)

121. The Barge Crane was configured with a 27.4 metre jib; a hoist rope with 2 falls of rope and a 315 kg main hook block. (ASF 63)

122. As at the time of the incident, the radius of the Barge Crane - calculated as the distance horizontally from the centre of rotation of the crane to the centre of the load - was not less than 12 metres. (ASF 64)

123. The Barge Crane was not fitted with any device designed to limit the operation of the crane to its maximum rated capacity for safe use on the No. 1 Barge. (ASF 65)

Purchase of a Portable Load Cell For Use with the Barge Crane

124. On 16 November 2018, SafeWork Inspector Jacob Morris conducted a site inspection at the premises. (ASF 66)

125. Following the site inspection on 16 November 2018, on 20 November 2018 Inspector Morris issued two (2) SafeWork NSW Improvement Notices, numbered respectively: SafeWork Improvement Notice No 7-343055 and SafeWork Improvement Notice No 7-343126, to Wharf & Bridge. (ASF 67)

126. On 20 November 2018 the Improvement Notices were served on Wharf & Bridge by email. (ASF 68)

127. The Improvement Notice No 7-343126 provided as follows:

‘‘Details of contravention

Site Location: LEVEL 3 55 SUSSEX ST, SYDNEY, NSW, 2000

I, Jacob Morris reasonably believe on 16/11/2018 that you are contravening a provision of the Work Health and Safety Act 2011, section 19.

Brief description of how the provision is being contravened:

Workers and/or other persons may be exposed to a serious risk to their health or safety as the NGK-RAPIER Pennine C34 Crane in use on AWB Barge No. 1 has no load indicator, sensor, gauge or computer to inform the operator during use.

Directions as the measures to be taken to remedy or prevent the contravention or likely contravention (it is mandatory to comply with these directions)

1. You must eliminate the risks with unknown loads during the operation of the NGK-RAPIER Pennine C34 Crane; consider the installation of loads (sic) sensors, load limits, portable sea/es[scales], or similar, to determine the weight of items prior to lifting.” (ASF 69)

128. Prior to 18 December 2018 a portable load cell (PX 1, Tab 7, photo 4) was purchased by AWB Contractors for use in conjunction with the Barge Crane when the weight of a load was unknown and the weight needed to be confirmed. (ASF 70) (PX1, Tab 7, Photo 4)

129. On 18 December 2018, Inspector Morris conducted a further site inspection at the premises. (ASF 71)

130. On 18 December 2018 Inspector Morris was informed that a portable load cell had been purchased for use with the Barge Crane to determine the weight of a load when that the weight was unknown. (ASF 72)

131. On 20 November 2018, Inspector Morris “cleared” the SafeWork Improvement Notices issued to Australian Wharf & Bridge. (ASF 73)

132. The portable crane scale was not used routinely with the Barge Crane to determine the weight of items prior to lifting. The portable crane scale was not being used on the day of the incident. (ASF 74)

133. The Barge Crane did not have any device designed to provide a warning to the operator, either prior to or during a lift, that the crane was approaching its rated capacity or safe working limit. (ASF 75)

134. The Barge Crane was not fitted with the portable load cell, to inform the operator of the weight of the vessel to be lifted either prior to or in the course of lifting that load to provide the operator with a warning to the operator that the crane was approaching its rated capacity or safe working limit. (ASF 76)

135. AWB did not direct, instruct or otherwise mandate in writing that, where the weight of a load was unknown, the portable load cell was to be used in conjunction with the Barge Crane to ascertain the weight of the load prior to the conduct of the proposed lift or to provide a warning to the operator that the crane was approaching its safe working limit. (ASF 77)

High Risk Work (HRW) Licences and the Operation of the Mobile Crane – 2013 Inquiry

136. In or about May 2013 Mr Whitmarsh lodged an enquiry with WorkCover NSW regarding the application of the High Risk Work Licensing provisions to the operation of a crane located on a floating barge asking the following question:

“Do I require a High Risk work licence to operate a crane on a floating barge?” (ASF 78)

137. On 27 May 2013 “WorkCover NSW” responded to Mr Whitmarsh’s enquiry regarding the application of the High Risk Work Licensing provisions as follows:

“The National Assessment Instruments for the operation of cranes does not cover (sic) the operation of a crane on a barge.

Therefore, under the current legislation a National Licence to perform High Risk Work is not required in New South Wales to operate cranes on floating barges.

As per the Work Health and Safety Act (the Act) 2011 employers or controllers of the plant must ensure that the operators have received adequate information and training and/or are supervised so that any risks to health and safety are minimised.” (ASF 79)

138. Mr Whitmarsh informed workers employed by AWB, in particular, Mr Poulton, that a National High Risk Licence to perform crane operations was not required to operate the Mobile Crane. (ASF 80)

The Contract to Salvage Crazy Train

139. On 14 December 2020 TfNSW emailed AWB seeking an urgent quote for the disposal of two steel yachts. The email advised that at high tide the yachts are submerged but at low tide they are standing on their keels. One of the two yachts was “JZ86N ‘Crazy Train’ 10.67m steel yacht” (ASF 109).

140. Three photographs of the vessels were attached to the email (ASF 110). The three photographs went into evidence in PX 1, Tab 12.

141. On 18 December 2020 Mr Whitmarsh provided a quotation to TfNSW on behalf of AWB. The quotation included the following services: Right each vessel and pump out water to float vessels; tow vessels to our yard in Rozelle Bay; lift the vessels out of the water; cut up vessels and place in bins for legal disposal; and take progress photos and provide to TfNSW upon completion of all works (ASF 112).

142. The cost for removal and disposal of Crazy Train was $15,000 plus GST (ASF 113).

143. The AWB quote did not include the cost of retaining the services of commercial divers to assist in the salvage (ASF 114).

144. On 20 January 2021 TfNSW accepted the AWB quote (ASF 115).

Salvage of Crazy Train on 25 January 2021

145. On 25 January 2021 Mr Whitmarsh sent the work boat “Ability” and its crew to salvage Crazy Train from TfNSW Rozelle. Crazy Train was taking water on board and the whole of the yacht was submerged or partly submerged, depending on the tide (ASF 116-117).

146. The precise weight of Crazy Train was not known to either Mr Whitmarsh or to the crew of Ability (ASF 118).

147. No written SWMS was prepared with respect to the salvage of Crazy Train from TfNSW Rozelle on 25 January 2021 (ASF 119).

148. On 25 January 2021 at TfNSW Rozelle the crew of Ability placed one end of a single 4-tonne rated synthetic sling in a choke hitch around the mast. The Hiab crane on Ability was used to pull the sling, causing Crazy Train to stand up on its keel hard against the side of Ability. The yacht was secured against the side of Ability with lines. The yacht was levelled and pumps were placed aboard Crazy Train to pump the hull dry (ASF 120).

149. Once Crazy Train had been pumped dry, the yacht was towed back from TfNSW Rozelle to the AWB yard where it was secured to the stern of Barge No. 1 adjacent to the sheer legs (ASF 121).

150. On 25 January 2021, after Crazy Train was moored to the stern of Barge No. 1, the yacht was observed to be sinking, going down by the bow (ASF 122).

151. Before Crazy Train was completely submerged, additional mooring lines were attached from the barge to the yacht. The end of the sling which had been attached to the mast was recovered and secured to the bollards on the stern of Barge No. 1 (ASF 123).

152. After the additional mooring lines were attached to the yacht, Crazy Train sank until the hull of the yacht was submerged. It was then suspended in the water from the stern of Barge No. 1 (ASF 124).

153. The next day was Australia Day 26 January 2021 and no work was performed on that holiday (ASF 126-127).

The Barge Crew Pre-Incident: Messrs Mitchell, Shadlow and Quinlan

Mr John Mitchell

154. Mr Mitchell started working for Wharf & Bridge in 1985. Mr Whitmarsh joined Wharf & Bridge in the late 1980s. Subsequently Mr Whitmarsh became the owner of the company. At a later date the employment of Mr Mitchell was moved over to AWB. Mr Mitchell continued to work for AWB until December 2020 when he resigned.

155. Mr Mitchell had a C1 crane licence, which meant that he could drive cranes of up to 100 tonnes. He performed crane driving and crane maintenance work. He drove the Barge Crane and he was licensed to do so. Mr Mitchell had seen Mr Whitmarsh working in the yard at AWB driving the yard crane, but only rarely.

156. Mr Mitchell worked as the superintendent of the No. 1 Barge. During that time the Barge Crane was not fitted with any permanent device for measuring the load. The yard crane sometimes had a scale attached to it to measure the load. Mr Mitchell never used the scale on the Barge Crane or the yard crane.

157. Mr Mitchell was aware of the load charts in the Barge Crane but he drove the crane by feel. The Barge Crane was attached to the crane by turnbuckles, and when the crane started to tip the turnbuckles would go bang. He then knew that the crane was getting close to being overloaded. That was the way he did things for years and years.

158. Mr Mitchell was engaged to salvage sunken yachts and other vessels. The weight of those vessels was worked out “by feel”. If Mr Mitchell knew the particular weight of the load then he could use the load chart accurately. If he did not know the weight, he operated the crane until the tracks started to pick up. Mr Mitchell recalled Mr Poulton working at the AWB yard. He showed Mr Poulton how to operate the Barge Crane but there was no formal training provided by him.

159. Mr Mitchell had worked on the recovery of sunken yachts and other vessels when divers were brought in. If the water was deep then divers would be called in. Mr Whitmarsh instructed that in shallower water, Mr Mitchell was to use Mr Poulton or Mr Shadlow to do dive work. This included scuba diving. Mr Mitchell knew that Mr Shadlow had no form of commercial qualifications and he thought that Mr Poulton only had a “social scuba ticket”. Mr Whitmarsh booked divers when needed, but if Mr Mitchell thought he needed a diver he would go to Mr Whitmarsh to seek authorization. When divers were used, the divers and the barge crew discussed the placement of rigging. Sometimes a lift was started and the divers then had to do an adjustment of the slings.

160. Mr Mitchell was taken to SWMSs for the dismantling of the wreck of the Harbour Queen (PX2, Tabs 33, 34 and 35). He was also taken to the SWMSs for the salvage of a houseboat at Pearl Bay (PX2, Tabs 36 and 37). Mr Mitchell was the site foreman and barge captain on those jobs. Both involved the use of commercial divers.

161. Mr Mitchell recalls speaking to Mr Whitmarsh about whether or not commercial divers were needed. It all depended on the depth of the water. Mr Mitchell was content for Mr Poulton or Mr Shadlow to do dives for a couple of metres, but deeper than that he was not comfortable with using them.

162. Mr Mitchell was involved in bringing boats back from TfNSW Rozelle. If the vessels were floating then he would try to get slings under them from the front and back, pick up the vessels and put them in the yard. They were not always lifted out immediately and were sometimes left until the end of the week, if they were not at risk of sinking.

163. Mr Mitchell said that he hooked a few sunken yachts that had a fair bit of water in them. He did not recall ever lifting up a sunken yacht by attaching to the mast, but he could have hooked onto a mast to roll a yacht over.

164. Mr Mitchell was asked whether there was a difference between lifting a yacht by the mast to the surface of the water and then lifting it out of the water. He said (Tcpt 233/16):

“The minute you break the surface with any material you really start getting the full load on the crane”.

165. Mr Mitchell thought it was permissible to lift a yacht by its mast to the surface of the water for the purpose of pumping it out, but that would depend on the feel or the weight.

Mr Bradley Shadlow

166. Mr Shadlow commenced work as an apprentice with Wharf & Bridge in about 1980. He worked for that company until 1990 when he left. Mr Shadlow returned to the business in 2013 and was employed by AWB which was run by Mr Whitmarsh. He worked for AWB until December 2020 when he resigned at the same time as Mr Mitchell. Mr Shadlow was a permanent member of the crew of No. 1 Barge. He did not hold any high risk work licences. He did drive cranes and he did dogging work, although he did not hold either licence. Sometimes he did this work with Mr Whitmarsh.

167. Mr Shadlow sometimes did diving for the purpose of attaching lifting chains or slings underneath yachts. He did free diving or scuba diving. Mr Shadlow did not have any kind of scuba diving ticket or licence. Mr Whitmarsh was the person who asked him to do that work.

168. Mr Shadlow had worked with recovered yachts which had been tied off to the hardstand at the AWB yard. Slings were placed underneath these yachts by walking the slings underneath. If there were no slings under a yacht, then the crane was used to bring these yachts up from below the surface by “hooking onto whatever we could” sometimes a lifting sling was attached to the mast. He said (Tcpt 239/16):

289. Australian Standard 2550.1-2011 deals with “Cranes, hoists and winches – safe use” (PX 18, Tab 3). Section 1.7 of the Standard says that all activities carried out under the Standard shall be carried out by a competent person. This phrase is defined in s 1.4.1 of the Standard to be a person who has acquired through training, qualification, experience or a combination of these, the knowledge and skill enabling that person to correctly perform the required task.

290. Section 1.8 of the Standard deals with “risk assessment”. A risk assessment shall be undertaken by a competent person before carrying out an operation required to be undertaken by a crane. The risk assessment must address the proposed operation rather than each individual lift. The assessment must be in writing and shall take into account: the task to be carried out; the range of methods by which the task can be done; the type of crane; the hazards involved and the associated risks; the actual method; and emergency and rescue procedures.

291. Section 6.5 of the Standard (PX 18, Tab 4) says that before lifting is attempted, both the working radius and the mass of the load must be established. Where the assessed load is greater than 50% of the rated capacity for the working radius involved, the load shall be determined by weighing or calculation.

292. Section 6.12 of the Standard deals with vessel-mounted mobile cranes. Section 6.12.3 notes that the manufacturer’s rated capacities for cranes mounted on vessels are frequently not greater than 70% of the land-based rated capacity.

293. Australian Standard AS 4497:2018 deals with “Roundslings – synthetic fibre” (PX 18, Tab 5). Section 4.2 of the Standard says that a sling shall have a working load limit that will provide adequate capacity for the intended uses, taking into account the method of connection, slinging arrangement, environmental conditions and use, and the nature of the load to be lifted.

294. Section 4.5 of the Standard deals with “Planning”. It says that planning shall include: assessing the mass of the load to be lifted; determining the slinging method; ensuring that the load itself, including any lifting points, will withstand the lifting operation; and defining the competency of person to undertake the lift.

295. Section 4.14.1 of the Standard says that a sling shall not be used to lift a load that exceeds the Working Load Limit of the sling for the particular conditions of use.

296. Safe Work Australia Information Sheet for “Vessel-mounted cranes”, December 2015 (PX 19, Tab 8), says that if the capacity of the crane has been de-rated for use on the vessel, this should be clearly identified on the load charts. Load charts should be kept with the crane. Controls should be put in place to ensure the crane is operated within the specified limits.

297. PX 18 and PX 19 contained other Standards, to which no reference was made in opening by counsel for SafeWork. SafeWork was content to proceed on the basis that the parts of the guidance material which were relevant to the present case were identified in the opening.

Expert Witness: Mr Justin McPherson

300. Mr Justin McPherson provided two expert reports (PX 14 and PX 15). Mr McPherson is a naval architect who holds a Bachelor Engineering (Honours) in Mechanical Engineering from the University of Western Australia and a Masters (Distinction) in Maritime Engineering Science from the University of Southampton. There was no challenge to his qualifications. I have already recorded my impressions of him as a dispassionate and careful expert witness.

First Report

301. The first report (PX 14) is structured as a series of questions asked by the solicitors for SafeWork and the answers given by Mr McPherson. His opinions are summarised below.

302. Mr McPherson said that if a crane was being used to lift a load there is a requirement to estimate the weight of the lifted load so as to ensure that the proposed lift is within the capacity of: the crane; the rigging or lifting gear used to undertake the lift; and lift points on the load which is to be lifted. If the lifted load exceeds the capacity of any of these items, then there is a risk that a component may fail or the crane may overturn.

303. The lifting capacity of a crane is typically defined in the crane load chart. This chart lists the maximum allowable lifted load for each lift radius. The lifting gear must be of suitable capacity. The connection points from which the load is lifted must be of sufficient capacity. The determination of a suitable arrangement is normally undertaken by a dogger, a person who holds a dogging high risk work licence. Mr McPherson referred to the Safe Work Australia Dogging Information Sheet which says that dogging work involves exercising judgment when selecting appropriate slinging methods and lifting gear by considering load size and shape and determining load weight and centre of gravity.

304. When the weight of a lifted object is not immediately obvious, the design of the lift may be beyond the technical capacity of the dogger and the lift would be classified as a designed or engineered lift. The lifting of the submerged yacht Crazy Train, of unknown weight, from an unrated lifting point, should have been considered as a designed or engineered lift and an assessment of the entire lift should have been undertaken by a competent person.

305. There were multiple ways in which the weight of a vessel could have been determined. The vessel could have been weighed on scale or with a load cell. An estimate could be made of the weight of a vessel using the vessel parameters. No documentation was available for Crazy Train. There are two methods available to estimate the mass of a vessel. The first is the length/displacement ratio. At par 3.9.2.1 Mr McPherson included a chart showing the length/displacement ratios for a range of typical yachts. The graph at Figure 2 set out a band or range of length/displacement ratios for yachts. The upper line of the band was for a lightweight cruising or racing yacht. The bottom of line of the band was for a heavy cruiser. A second way in which the weight of vessel can be estimated is to compare it to similar vessels.

306. Using the length/displacement ratio for Crazy Train, Mr McPherson offered the opinion that the mass of Crazy Train was estimated to be 5.5 tonnes. Mr McPherson also compared Crazy Train to similar vessels, which gave a final estimated weight of 6.17 tonnes, with a margin of error being -0.7 tonnes and +1.5 tonnes.

307. The capacity of a crane is a function of both the mass or weight of the lifted load, and the lift radius of the crane. The Barge Crane was fitted with a boom angle indicator. The length of the boom was 27.4 metres. Mr McPherson referred to the crane manufacturer’s specification which included a radius diagram, which could be used to determine the lift radius if the boom length and angle were known.

308. By calculation, Mr McPherson estimated that the distance from the crane centre of rotation to the Barge No. 1 stern was 11,315mm. He then assumed a distance of 200mm between the Barge No. 1 stern and the side of the yacht. He assumed that the half beam of the yacht was 1,650mm. Thus the estimated lift radius was the sum of these figures, being 13,165mm (13.615 metres).

309. Mr McPherson said that the safe use of mobile cranes on a barge or vessel required any load capacity to be de-rated. Lifting items in water is a complex operation and the assessment of the loads involved becomes complex. The object mass, entrained water, buoyancy, drag and inertial loads may all contribute to the load on the crane hook.

310. Using the calculated (estimated) capacity of the crane at 13.165 metres, the lifting capacity was 3.93 tonnes. That does not include any de-rating factors for operating the crane on a vessel. Lifting the fully-flooded yacht from beneath the water surface would give a lifted static load of up to 12 tonnes, assuming the yacht hull was full of entrained water. Mr McPherson offered the view that the weight of Crazy Train exceeded the rated capacity of the crane “by a significant margin”. The hazards associated with this lifting included structural failure or collapse of the crane, or overturning of the crane. Mr McPherson said: “I do not believe that the subject lift should have been attempted because the estimated load exceeds the crane load chart capacity by a significant margin”.

311. Mr McPherson then considered the 4-tonne sling attached to the mast. He said that the estimated submerged weight of Crazy Train, of up to 12 tonnes, exceeded the rated capacity of the sling “by a significant margin”. The risk of using this sling was that the sling would fail. Mr McPherson said: “The proposed lift should not have been undertaken with the choked 4.0 tonne WLL synthetic sling because the weight of the lifted load (6.17 tonnes up to 12 tonnes) exceeds the sling WLL by a significant margin”.

312. Mr McPherson then considered the lifting point where the sling was choked on the mast. He said: “The lifting point was obviously not sufficient for the proposed lifting operation because it failed”. The mast of the yacht was not designed to act as a lifting point for the entire vessel. He said: “I would think that the failure of the mast when loaded in this manner would be expected”.

313. Mr McPherson said that the weak point in the lifting arrangement was the capacity of the yacht mast. The crane hook, wire and winch have a capacity of at least 34 tonnes when lifting with a shorter boom at reduced radius. The crane was secured to the deck, so crane tipping was not likely to be a limiting factor. The 4.0 tonne WLL synthetic lifting sling was designed with a minimum breaking load of 22.4 tonnes. Mr McPherson said at par 3.14.5.2:

“The likely explanation for the time period during which lifting was occurring prior to the failure is that as the lift progressed the lifted load increased as more of the yacht and the trapped water was lifted clear of the water. Eventually this load exceeded the capacity of the mast.”

314. In section 3.16 of PX 14 Mr McPherson considered alternative methods of raising the yacht. He said that the sheer legs would have been suitable to lift the yacht. They had a capacity of up to 50 tonnes. It would have been necessary to have a suitable system for connecting the sheer legs to the yacht. He said that flat synthetic slings are commonly used to lift vessels, as illustrated in the photo and Figure 27 in the report.

Second Report

315. The second report of Mr McPherson (PX 15) followed the format of Mr McPherson answering questions asked by the solicitors for SafeWork. Mr McPherson said that he had insufficient information to determine how much of the yacht was immersed in the water when the incident occurred, or to determine the amount of water that remained within the yacht. He said that any water which remained in the yacht would result in a force which acts in the same direction as the yacht weight and which increases the load on the crane hook.

316. Mr McPherson was given further information about similar vessels. Taking into account the original vessels and similar vessels, he calculated an estimate of the weight of Crazy Train at 7.54 tonnes. He did say that there was not enough information to be able to make anything but an estimate of the weight.

317. Mr McPherson considered the photographs taken by Mr Wilson from the cabin of the crane. These show the bow of Crazy Train raised by the sling on the mast and the stern partly submerged in the water. Mr McPherson concluded his second report as follows:

“I cannot conceive of any scenario in which the weight of the yacht would not have exceeded the capacity of the crane at some point through the lifting cycle which was undertaken.

There is a point at which the crane hook load could potentially be zero if the yacht [was] completely empty of water and was sitting level at it’s (sic) normal water line. This is not, however the case which is illustrated in the photos.”

Oral Evidence

318. Mr McPherson was cross-examined by counsel for Mr Whitmarsh. He agreed that he did not know a large number of the parameters necessary to calculate the precise displacement of Crazy Train. However, he did say that he could make an estimate of the mass by looking at the type of vessel and the looking at the range of typical length/displacement ratios. He said that this would give “a reasonable indication of the lowest mass it could be and the highest mass” (Tcpt 295/50-296/1).

319. Mr McPherson accepted that he did not know precisely where Crazy Train sat in the diagonal band in the figure taken from a book about yacht design. However, he said that Crazy Train was not a lightweight racing yacht and it was not a heavy cruising yacht so it would lie somewhere in the band (Tcpt 296/40). To place it in a specific spot within the band Mr McPherson would need to have known a large number of vessel parameters (Tcpt 296/50).

320. Mr McPherson accepted that he took the average of the low and the high value for the displacement of Crazy Train. He acknowledged that he did not know where Crazy Train sat precisely within the range, but he knew that it was not a grand prix racing yacht and it was not a heavy cruising boat (Tcpt 298/15).

321. Mr McPherson acknowledged that Crazy Train was not necessarily the same hull shape as the comparable yachts which were selected. However, he said that Crazy Train had a similar shape to those yachts. Mr McPherson said that all he was trying to do was “to come up with an estimate, not accurately predict the value”. He said that “it would still be a reasonable estimate” (Tcpt 299/35).

322. Mr McPherson acknowledged that if he had information about other similar yachts, then his calculated estimate would change again.

323. Mr McPherson was also cross-examined about his calculation of the distance from the centre of the crane to the mid beam of Crazy Train. Mr McPherson acknowledged that this was an estimate based upon the information he had.

324. Mr McPherson acknowledged that it was very difficult to tell the mass of a yacht being lifted out of the water, because how much water is in the yacht is not known (Tcpt 303/5). He said that all he could do was give “a reasonable idea of what the minimum weight is” (Tcpt 303/13).

325. Mr McPherson was then cross-examined about the sling. He said that the working load limit (WLL) is the maximum load that should be lifted using the sling and the breaking load is the load at which the sling will break. There is a factor of safety design in synthetic slings. Slings degrade and the factor of safety is used to try to ensure that at the end of their life, the sling still has a reasonable margin of safety (Tcpt 304/46-305/4).

Failure By AWB To Comply With Its Duty Under The WHS Act

326. As recited above, Mr Whitmarsh admitted that AWB had failed to comply with its duty under the WHS Act, save that he disputed the allegations in par 32(a)(i), (ii) and (iii) and par 32(f) in the Amended Summons.

327. It is necessary to make findings about these disputed allegations. As a matter of logic, if a company did not breach its duty, then an officer of that company could not be found liable for failing to exercise due diligence to ensure that the company complied with its duty under the WHS Act. It is not necessary for the company to be convicted of a breach of duty – s 27(4) of the WHS Act – but it is essential to a s 27 prosecution that a breach of duty by the company is established on the evidence.

328. Paragraph 32(a)(i) of the Amended Summons concerns AWB undertaking an adequate risk assessment covering the preparation of a detailed estimate of the weight of the vessel in air and water. Firstly, this is exactly what Mr McPherson said should have been done. Mr McPherson set out two ways to arrive at an estimate, acknowledging that it was impossible to precisely know the weight. His opinion, expressed in PX 14 on this topic, is summarised above.

329. Secondly, Australian Standard 2550.1-2011 dealing with “Cranes, hoists and winches – safe use” (PX 18, Tab 3) says in section 1.8 that a risk assessment shall be undertaken by a competent person before carrying out an operation required to be undertaken by a crane. The risk assessment must address the proposed operation rather than each individual lift. The assessment must be in writing and shall take into account: the task to be carried out; the range of methods by which the task can be done; the type of crane; the hazards involved and the associated risks; the actual method; and emergency and rescue procedures.

330. AWB did not conduct a risk assessment of any kind before the attempt to lift Crazy Train from the water. The most elementary risk assessment would have told AWB that the proposed lift was fraught with danger. I therefore find that AWB breached its duty under the WHS Act in the manner pleaded in par 32(a)(i) of the Amended Summons.

331. Par 32(a)(ii) of the Amended Summons pleads that the AWB risk assessment should have made a detailed estimate of the weight of water in the vessel when submerged. Mr McPherson did not say this in his reports. In cross-examination he described such a task as “very difficult”. I find that AWB did not breach its duty under the WHS Act in the manner pleaded in par 32(a)(i) of the Amended Summons.

332. Paragraph 32(a)(iii) of the Amended Summons pleads that the AWB risk assessment should have identified the size of the crane and related equipment such as slings required to perform the projected lift. Mr McPherson did say that the weight of Crazy Train exceeded the rated capacity of the crane “by a significant margin”. He also said that the subject lift should not have been attempted because the estimated load exceeded the crane load chart capacity by a significant margin. Mr McPherson also said that the weight of Crazy Train exceeded the rated capacity of the sling “by a significant margin”. The risk of using this sling was that the sling would fail. Since I accept that expert opinion, I find that AWB breached its duty under the WHS Act in the manner pleaded in par 32(a)(iii) of the Amended Summons. In any event what Mr McPherson says is based upon the following provisions in the guidance material:

1. Australian Standard 2550.1-2011 dealing with “Cranes, hoists and winches – safe use” (PX 18, Tab 3), sections 6.5 and 6.12.

2. Australian Standard 2550.1-2011 dealing with “Cranes, hoists and winches – safe use” (PX 18, Tab 3), sections 4.2, 4.5 and 4.14.

3. Safe Work Australia Information Sheet for “Vessel-mounted cranes”, December 2015 (PX 19, Tab 8), which says that controls should be put in place to ensure the crane is operated within the specified limits.

333. Paragraph 32(f) of the Amended Summons pleads that AWB should have prohibited workers from using the crane and the sling to lift Crazy Train. Since Mr McPherson expressed the views summarised above concerning the overloading of both the crane and the sling, and since there was a risk of failure of either or both pieces of equipment, and since the Standards in effect warn of such risk, I find that AWB breached its duty under the WHS Act in the manner pleaded in par 32(f) of the Amended Summons.

334. In summary, SafeWork has established that AWB breached its duty under the WHS Act in the ways pleaded in pars 32(a)(i), 32(a)(iii) and 32(f) of the Amended Summons, but has failed to prove a breach as pleaded in par 32(a)(ii).

Failure by Mr Whitmarsh to Exercise Due Diligence

335. Paragraph 33 of the Amended Summons pleads four ways in which it is alleged that Mr Whitmarsh failed to exercise due diligence to ensure that AWB complied with its duties under the WHS Act.

336. The first of these is pleaded in par 33(a) as a failure by Mr Whitmarsh to exercise due diligence to ensure that AWB had in place and used appropriate processes and resources to eliminate or minimise risks to health and safety for work carried out as part of the conduct of the AWB business or undertaking. Paragraph 33(a) then lists ten ways in which it is said that AWB should have taken appropriate steps. These included: undertaking an adequate risk assessment; obtaining the weight of Crazy Train; planning the recovery of Crazy Train using the crane, lifting slings and a lifting point consistent with relevant safe working limits; prohibiting workers from performing work which would exceed those safe working limits; failing to use a qualified dive team to assist in putting slings underneath Crazy Train; providing opportunities for the operators of the mobile cranes to obtain a suitable licence; assessing the skills and competence of mobile crane operators; providing training to workers so that they were aware of the risks associated with working with the mobile crane and performing crane lifts; requiring the mobile crane to be operated in accordance with the Load Charts and in accordance with Working Load Limits; never using the mast of a yacht as a lifting point; developing and promulgating a SWMS before work commenced on raising Crazy Train.

335. As previously acknowledged, the WHS Act does not require the director to do what the company should do. The s 27 duty cast upon the officer of a company is, to use the memorable phrase coined by Mr Hodgkinson SC, a duty “to ensure to ensure”. A director must ensure that the company has adequate processes and resources to ensure that the company complies with its duty under the WHS Act.

336. In the light of the findings of fact made above, it can be bluntly but accurately stated that Mr Whitmarsh did not put in place any appropriate processes and did not provide appropriate resources to enable AWB to discharge its s 19(1) duty. As previously recited, I have accepted the submission of counsel for SafeWork that Mr Whitmarsh was at the centre of the AWB safety system. He was the system. AWB failed utterly to take appropriate steps to eliminate or minimise risks to health and safety in relation to the raising of Crazy Train, and Mr Whitmarsh failed utterly to put in place and use appropriate processes and resources so that AWB could discharge its WHS duties. He failed to carry out any of his personal responsibilities, set out in plain English in the AWB safety documentation (summarised above), and thus he failed to exercise due diligence.

337. Even worse, as found above, Mr Whitmarsh told Mr Poulton to use the sling attached to the mast to lift Crazy Train from the water. Mr Whitmarsh knew that Mr Poulton did not have a licence to drive the crane and had not been formally trained in driving the mobile crane, which included the need to ascertain the mass to be lifted in accordance with the load charts. The instruction which Mr Poulton received from Mr Whitmarsh – to back off a lift if the crane started to tip – was a very cavalier and indeed dangerous approach to safe operation of the crane. If a mobile crane starts to tip, it is well beyond its safe working limit.

338. Paragraph 33(b) of the Amended Summons pleads that Mr Whitmarsh should have exercised due diligence by verifying by inspection or supervision that adequate PPE was available and in use during lifting operations. This included a hard hat and a life jacket or life vest since the operations were being conducted in proximity to water. The evidence was that such equipment was at the AWB yard, but its use was never mandated, and hard hats and life vests were hardly ever worn. The CCTV footage, insofar as it can show anything, shows workers walking around the AWB yard either bare headed or wearing cloth caps. This is in spite of crane operations involving lifting loads above the heads of workers, and the inherently dangerous way in which Crazy Train was being lifted with a sling attached to the mast.

339. Paragraph 33(c) of the Amended Summons pleads that Mr Whitmarsh should have exercised due diligence by instructing workers, in particular Mr Poulton, that work was not to commence on the lift of Crazy Train until a risk assessment had been completed and a detailed SWMS had been prepared. There was no risk assessment and there was no SWMS. Basically Mr Poulton, an unqualified operator of the crane, who had been taught bad habits by Mr Whitmarsh (who himself did not have a ticket for a 34-tonne crane), was in effect told to go ahead as best he could, with no attention given to the hazards involved or the means of ameliorating those hazards.

340. Paragraph 33(d) of the Amended Summons pleads that Mr Whitmarsh failed to exercise due diligence by verifying by supervision or visual inspection that appropriate resources, processes and measures had been provided, implemented and maintained by AWB and were being used by its workers. Mr Whitmarsh well knew that appropriate resources, processes and measures were not used, because he was the person at AWB in charge of safety, and he had done nothing. Mr Whitmarsh was on site, and even if he was in his office, that office afforded a view of the AWB yard. Mr Whitmarsh could and should have seen what was going on and could and should have recognised the danger posed to AWB employees by the flawed methods being used to attempt to raise Crazy Train.

341. Within a very short time after this fatal incident, AWB was able to produce appropriate SWMSs and conduct a Toolbox Talk (neither of which was attempted on the day of the incident) to take appropriate measures to guard against the risk of death or serious injury to AWB workers, during the salvage of a sunken vessel. When appropriate SWMSs were produced, they were generated and approved by Mr Whitmarsh. When a Toolbox Talk was held, it was held by Mr Whitmarsh. To repeat, Mr Whitmarsh did not have to do himself what the company should have done. However, he had to take proactive steps to ensure that AWB complied with the WHS Act. Mr Whitmarsh abdicated his responsibility in this regard completely, and did nothing.

342. In those circumstances, I find that the third element of the offence has been made out. I find that SafeWork has established beyond a reasonable doubt that Mr Whitmarsh failed to exercise due diligence to ensure that AWB complied with its duty or obligation under the WHS Act.

Exposure of an individual to risk of death or serious injury

345. The fourth element of the offence is that SafeWork must establish the failure to exercise due diligence exposed an individual to risk of death or serious injury. This could not be denied and was not the subject of any submissions to the contrary. The failure by Mr Whitmarsh to exercise due diligence undoubtedly exposed Mr Hayward to the risk of death or serious injury. I therefore find that SafeWork has established, beyond a reasonable doubt, the fourth element of the s 27 offence, namely that the failure to exercise due diligence has exposed an individual to risk of death or serious injury.

Conclusion

346. The orders of the court are:

1. The elements set out in the Amended Summons have been proved beyond reasonable doubt.

2. I find the defendant Paul Whitmarsh guilty.

3. The matter will be listed for a date in July 2025 for a sentence hearing.

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Decision last updated: 02 May 2025