Officer acquitted of alleged breach of WHS due diligence duty

6 minute read  18.06.2024 Trent Forno

This case is believed to be the first contested prosecution of its kind in Queensland.


Key takeouts


  • Officers that delegate key WHS responsibilities to qualified and experienced employees can take some comfort from this acquittal.
  • This case confirms that officers still need to proactively oversee an appropriate safety and health management system to satisfy their WHS due diligence duty.
  • Defending WHS officer prosecutions is challenging for all involved, and we are proud of our WHS team's work for the Defendant in this important case.

The Magistrates Court of Queensland has recently acquitted a former company director charged with breaching section 27 of the Work Health and Safety Act 2011 (WHSA) – Guilfoyle v Walshaw MAG-00149166/21(1), in what we believe is the first contested prosecution of an officer in Queensland.

The decision confirms that the duty of an ‘officer’ to exercise due diligence under the WHSA is ‘markedly different’ from the duty of the ‘Person Conducting a Business or Undertaking’ (PCBU). The decision also confirms that it is reasonable for officers to rely on senior employees with specific accountability for operational health and safety. It also contains a useful summary of the legal principles for assessing whether the prosecution has proven the alleged failures of due diligence.

Background

Incident

The Defendant was the former Managing Director of a PCBU which operated a zipline course in Far North Queensland. Over five months after the Defendant had left the company, a patron was tragically killed and his spouse seriously injured when the zipline failed, causing them both to fall to the ground. The incident was caused by a failure to adequately maintain the wire rope grips which secured the zipline to the platform.

Charge

The Defendant was charged with a failure to exercise due diligence by not:

  • requiring an engineer to design the manner in which the zipline was secured to the platform and for an engineer or advanced rigger to oversee installation of the zipline;
  • directing the Operations Manager to secure the zipline using a method which did not require regular tightening;
  • supervising or checking that the Operations Manager had engaged an engineer or advanced rigger to install or oversee installation of the zipline;
  • considering the WHS Regulations, relevant Australian Standards and/or making enquiries with Work Health Safety Queensland to determine the appropriate method of securing the zipline.

The prosecution argued that the alleged failures led to an inappropriate method of securing the zipline to the platform, thereby exposing persons who used the zipline, from when it was installed to when the Defendant left the company, to the risk of death or serious injury.

Meaning of 'due diligence'

Magistrate Priestly set out these principles for considering the meaning of due diligence based on previous decisions:

  • Due diligence is defined to include taking 'reasonable steps' to achieve the objectives in section 27(5)(a) – (f) of the WHSA;
  • The definition reflects that 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 to provide adequate supervision to ensure the system is carried out;
  • While the definition is not exhaustive, ‘reasonable steps’ must in some way relate to the safety system implemented and enforced by an officer to ensure compliance by the PCBU with its duties;
  • Section 27 does not require that the officer undertake reasonably practicable measures on behalf of the PCBU – the duties are ‘markedly different’;
  • Unlike a one or two person business, a Managing Director is not expected to know everything that is going on at any given moment – running a corporation necessarily involves a level of delegation, including to senior employees whose job is to manage health and safety;
  • Prosecuting an officer is a difficult task in that the prosecution must prove a negative – i.e. it must prove that 'reasonable steps' were not taken by the officer to comply with their duty.

Evidence

The decision to use wire rope grips was made during the construction of a platform to which the failed zipline cable had been secured. His Honour noted that the prosecution adduced ‘very little evidence’ about what processes were deployed during construction, or how the project itself was managed. This made it very difficult to identify any omissions by the Defendant as to safety management. Most of the evidence about the safety management system was introduced by the Defendant through cross-examination, including that the Defendant was actively involved in overseeing the system.

There was substantial evidence (also through cross-examination) which showed that the Operations Manager, who reported directly to the Defendant in the corporate structure, was specifically responsible for risk management, WHS and managing and coordinating maintenance of the zipline. This included construction of the platform and installation of the zipline. The evidence showed that the Operations Manager, who also had a number of direct reports, was both competent and experienced in relation to those matters. On the other hand, the Defendant's role in the business was marketing, sales and administration. Given the clear delineation of their roles, the Defendant placed substantial reliance on the Operations Manager when it came to addressing WHS risks, including those associated with the zipline's installation. Nevertheless, there was evidence that the Defendant regularly met with the Operations Manager and there was a 'free flow of information' within the business.

There was also evidence that the Operations Manager had 'unfettered access' to the necessary resources and information to fulfil his WHS responsibilities and for the PCBU to comply with its duties. This included access to the engineer who designed the platform, other senior employees who had extensive experience in the zipline industry, as well as relevant Australian Standards. The Operations Manager had also consulted the supplier of the zipline in relation to the use of wire rope grips, and the engineer gave evidence that he viewed the zipline operator as the 'subject matter expert'. Importantly, evidence was also introduced of widespread use of wire rope grips in the zipline industry, across Australia and overseas. The prosecution's own expert engineer conceded that such use could be justified if certain safeguards were followed and that other methods of securing a zipline cable also involved a level of risk, such that the risk of failure could not be eliminated.

Decision

In acquitting the Defendant, Magistrate Priestly concluded:

  • The Defendant was proactive in her role as Managing Director, including overseeing the safety management system, and could not have been expected to know everything that was going on in the business;
  • The Operations Manager was solely responsible for operational management of WHS matters. This included construction of the platform and installation of the zipline. He was both competent and experienced and it was reasonable for the Defendant to have relied on him, particularly given the delineation between their roles and the resources available to him;
  • • It was not a 'reasonable step' for the Defendant to have directed the Operations Manager in relation to the manner in which the zipline was installed, including the method of securing it to the platform. This would involve 'micro-managing' his performance of the work when there was no evidence to indicate the safety management system required that level of attention; and
  • The prosecution led no evidence: i) about what the Defendant knew in terms of relevant Standards or Regulations and therefore what, if any, shortfall there might have been; ii) about any failings of the safety management structure and processes; and iii) to support the prosecution's case that if an engineer had been consulted, a different method of securing the zipline would have been used.

Why is this relevant?

The decision emphasises that the duty of an officer should not be conflated with the WHS duties of a PCBU. While 'due diligence' is not confined to the matters in section 27(5)(a)-(f) of the WHSA, the 'reasonable steps' to be taken by an officer must relate to the overall safety and health management system implemented by the PCBU. Other than in a very small business where there is little scope for delegation, an officer can partly discharge their WHS due diligence obligations by relying upon competent employees with specific responsibility for managing WHS. The decision also reinforces the duty of the prosecution to properly particularise the alleged breaches, supported by evidence which is relevant to exercising due diligence.

While we are not aware of the decision being appealed, at this stage the appeal period has not expired.


Our work for the Defendant in this matter builds on our national work health and safety team's record in protecting organisations and officers from exposure to legal and reputational risk.

If you need any support to proactively manage WHS risk for your workplaces or respond to WHS incidents or litigation, please contact us.

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https://www.minterellison.com/articles/officer-acquitted-of-alleged-breach-of-whs-due-diligence-duty