An officer’s duty to exercise due diligence: A clarification

This article was co-authored with Michael McCrea.

• Introduction
• Factual background

Introduction

A recent decision of the District Court of New South Wales has clarified the content, nature and extent of an officer's duty to exercise due diligence in relation to safety matters under the Work Health and Safety Act 2011 (NSW) (WHS Act).

Persons conducting a business or undertaking (PCBU) have a primary duty of care under s 19 of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers whilst at work in the business or undertaking. A PCBU must also ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking.

Separate to the primary duty of care owed by the PCBU itself, is a concurrent duty that owed by an officer of a PCBU, to exercise due diligence to ensure that the PCBU complies with its duties under the WHS Act. Officers include directors, company secretaries and other senior executives who make, or participate in making, decisions which affect the whole or part of the business or corporation.

On 8 March 2024, Judge Russell SC delivered judgment in SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 (Doble). The prosecutor charged the PCBU with a breach of its primary health and safety duty under s 19(1) of the WHS Act contrary to s 32. It was alleged separately that the sole director of the PCBU failed to exercise due diligence (as an officer) to ensure that it complied with its duty under s 19(1) contrary to s 27(1) of the WHS Act.

Factual background

Miller Logistics Pty Ltd (Miller) carried on a transport business and operated a number of depots throughout New South Wales. One of those depots was located in Tamworth. On 4 November 2020, Christopher Herden (Mr Herden) was working at the Tamworth depot.

Mr Herden was working on foot assisting Ron Hill (Mr Hill), the driver of a B-Double trailer which was parked in the loading/unloading area at the depot. At the time of the incident, Mr Herden was helping Mr Hill load his truck. Mr Hill asked Mr Herden to search for a smaller pallet. To find a suitable pallet, Mr Herden had to walk across the other side of the depot which was where the pallets were stored. As he was looking for another pallet, Mr Herden was struck from behind by another forklift and suffered serious injuries as a result.