SafeWork NSW v Paul Whitmarsh (No. 3)

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.