Australia, Aug. 23 -- New South Wales Land and Environment Court issued text of the following judgement on July 23:

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. AWB is now in liquidation.

4. On 2 May 2025, after a judge alone trial on a plea of not guilty, I found Mr Paul Whitmarsh guilty of an offence that as an officer of AWB who had a work health and safety duty pursuant to s 27 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) to exercise due diligence to ensure AWB complied with its duty under s 19, he failed to comply with that duty and thereby exposed Mr Haywood to a risk of death or serious injury contrary to s 32 of the WHS Act: SafeWork NSW v Paul Whitmarsh (No. 3) [2025] NSWDC 150 (the primary judgment).

5. The maximum penalty for the offence is a fine of $353,430.

Background

6. At trial the parties presented an Agreed Statement of Facts which are set out in the principal judgment at [52]-[153]. After reviewing the evidence, I made additional findings of fact which are set out in the principal judgment at [47]-[51], [173]-[178] and [196]-[201]. Further findings of fact concerning how the incident happened are set out in the principal judgment at [250]-[277]. These largely came from the Agreed Statement of Facts but are supplemented by the evidence of witnesses. I will not set out those agreed facts and findings again in full, but I incorporate them by reference into this judgment.

Evidence for the Defendant

7. Mr Whitmarsh affirmed an affidavit on 20 June 2025 (DX 2) which is summarised below.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1983039ee8ec5b297f2c0759)

Disclaimer: Curated by HT Syndication.