The steps that a director can take to meet their work health and safety (WHS) duty of care has been examined in the recent decision of SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble. In this case, the director successfully defended charges laid against him, with the Court outlining the practical steps that he took to avoid a conviction.

Case background

Miller Logistics Pty Ltd (Miller) is a freight distribution company with eight transport depots located throughout New South Wales and the Australian Capital Territory. Zentry Pty Ltd was contracted to provide freight services at Miller’s transport depot in Tamworth, NSW. Zentry employed truck drivers who would use Miller’s depot to load and unload their trucks. 

SafeWork NSW issued three improvement notices to Miller over 3 years in relation to the lack of traffic management controls at its Yennora, Beresfield and Tamworth depots. Most notably, the last notice was issued at the Tamworth depot just 5 days before the incident occurred at that location. While steps had been taken at the other locations, no substantial traffic management plan was in place at Tamworth. 

On 4 November 2020, Mr Herden, a truck driver employed by Zentry, was assisting another truckdriver, Mr Hill, to load and secure his B-Double trailer at Miller’s Tamworth depot. Mr Hill instructed Mr Herden to search for a smaller freight pallet that would fit beneath the mezzanine level of the B-Double trailer. While searching for a suitable pallet, Mr Herden crossed the loading zone and was struck from behind by a forklift being operated by another Miller employee. The forklift was being driven with a full pallet, raised so high above the ground that it obstructed the driver’s line of sight. Mr Herden suffered significant injuries as a result. 

Company liability

Miller unsuccessfully defended the charge brought against it under section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act) for having failed to comply with its WHS duty, which ultimately exposed Mr Herden to a risk of death or serious injury. 

The Court held that Miller was not only on notice of the risk due to the improvement notices but should have reasonably known that “nothing short of total separation of forklifts and pedestrians was adequate to ensure safety”. Despite this obvious risk, the only precaution adopted by Miller at this depot was the 3-metre rule, which was loosely enforced. A designated loading and unloading zone, line marking, pedestrian exclusion zones and physical barriers could all have been implemented as higher level controls compared with the administrative control regarding keeping 3 metres away from mobile plant. 

The company has not been sentenced yet. 

Director’s liability

Miller’s sole director, Mr Doble, was charged as an officer of Miller under section 27 of the WHS Act for failing to exercise due diligence to ensure that Miller complied with its WHS duty.

SafeWork NSW alleged that Mr Doble breached his duty to exercise due diligence by failing to:

• ensure that Miller had appropriate resources and processes to eliminate or minimise WHS risks arising out of its operations; and
• verify that the resources and processes were being implemented at Miller’s Tamworth depot.

In finding Mr Doble not guilty of any offence, the Court found that Mr Doble “took an active interest” in WHS, as Mr Doble:

1. Employed Mr Hayter as a compliance manager to deal with WHS at each of Miller’s depots and as the “primary process or resource” for managing safety. As Mr Hayter had been responsible for WHS within the business during this period, Mr Doble was entitled to reasonably rely on the information provided by Mr Hayter.
2. Attended weekly management meetings where he was briefed on WHS matters by Mr Hayter.
3. Followed-up safety issues at the next management meeting to ensure the proposed safety measures had been implemented at each depot.
4. Remained informed about updates to the traffic management plans.
5. Personally attended each depot, and instructed Mr Hayter to immediately fix any WHS issues that he observed.
6. Attended meetings with the depot managers to discuss Mr Hayter’s compliance measures.
7. Signed-off on updated WHS policies prepared by Mr Hayter.
8. Directed supervisors to chase-up any workers who disregarded safety instructions provided by their respective depot manager.
9. Promptly responded to WHS issues irrespective of the expense.