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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SafeWork NSW v Paul Whitmarsh (No. 3)

Details

AGLC: SafeWork NSW v Paul Whitmarsh (No. 3) [2025] NSWDC 150
Case: [2025] NSWDC 150
Decision Date: 02 May 2025

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Paul Whitmarsh, the director of a company involved in sunken yacht salvage, in the Local Court of New South Wales. The prosecution centred around the failure of a crane lift during a salvage operation which resulted in a mast striking a worker on the head. The company was charged under the Work Health and Safety Act 2011 (NSW) with failing to meet its duty of care for the safety of its workers, specifically for the risk of death or serious injury. Whitmarsh was accused of not exercising due diligence in managing the risks associated with the salvage operation.

The court had to determine whether Whitmarsh, as a director, had failed to take all reasonable steps to ensure the safety of the workers under his company's control. This involved assessing whether he had put in place appropriate processes and resources to manage the risks, and whether he had adequately verified that personal protective equipment (PPE) was being used correctly. The central issue was whether Whitmarsh's actions or inactions constituted a breach of his duty of care under the Act, and whether these actions led directly to the worker's injury.

The court found that Whitmarsh had not exercised due diligence in ensuring the safety of the workers. It was determined that he did not implement appropriate processes to mitigate the risks associated with the salvage operation, and he failed to provide the necessary resources to ensure a safe work environment. Additionally, there was no evidence that he had verified the proper use of PPE. The court concluded that Whitmarsh's failures directly contributed to the risk of serious injury to the worker. Consequently, the court found Whitmarsh guilty of the charges brought by SafeWork NSW.

The court ordered that the elements set out in the Amended Summons had been proved beyond reasonable doubt and that Whitmarsh was guilty. The matter was listed for a sentence hearing to be held in July 2025. This decision underscored the importance of due diligence and the responsibility of directors in ensuring the health and safety of workers in high-risk industries.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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