In the recent case of R v Cordwell Resources Pty Ltd [2023] QCA 26 (R v Cordwell), the Court convicted and sentenced a director to six-month imprisonment (wholly suspended for twelve months) over safety breaches at a sand mine in Queensland.
This case is a reminder that officers’ will be held personally accountable for failing to exercise due diligence to ensure their business complies with its work health and safety duties.
The Facts
Brian Cordwell was a director of Cordwell Resources and managed operations at a sand mine in Queensland.
Brian Cordwell directed employees to conduct repair work to a suction line. He instructed two employees to carry out the repairs whilst standing inside the bucket of a wheel loader, so that they could be raised (while standing in the bucket) 4.5 meters up to the height of the broken line. One of the workers knelt on the edge of the bucket to conduct repairs while the other worker held onto him to prevent him from falling out.
The bucket of the wheel loader tilted forward. One of the workers was able to jump from the bucket onto the plant to avoid a fall to the ground and sustained only minor injuries. When the other worker attempted to stand up in the bucket, its top edge caught the back of his head as it tilted, pushing him against the plant and preventing him from escaping. The loader operator released the man’s head and he was transported to hospital, with two large lacerations on his head requiring stitches. Two days after the incident, Cordwell Resources erected scaffolding to repair the broken valve.
When Workplace Health and Safety Queensland (WHSQ) investigated the matter, Cordwell Resources pointed to its workplace policies and guidelines that should have prevented the incident.
The company’s working at heights policy identified that a safety harness was required for this type of repair and prohibited the use of any plant. The company’s plant risk assessment form prohibited persons from riding on plant or attachments.
The Findings
The Court found the company had breached its primary duty under the Work Health and Safety Act 2011 (Act) to ensure, so far as reasonably practice, the health and safety of its workers.
Brian Cordwell was found to have breached his officer’s duty under section 27 of the Act to exercise due diligence to ensure the company complied with its primary duty.
The Court ordered that the company be convicted and fined $500,000. Brian Cordwell was convicted and sentenced to six months imprisonment, wholly suspended for twelve months.
The Supreme Court has rejected an appeal against the sentence.
Officers’ duty to exercise due diligence
This case was a clear safety breach by the director. But it is a reminder that directors and officers will be held personally accountable for breaches of the work health & safety (WHS) legislation.
This includes the duty of all officers to exercise due diligence to ensure their business is complying with all of its duties under WHS legislation.
“Officers” are not just directors – they include persons who make or participate in significant decisions that affect the business or its financial standing.
The legislation imposes a proactive duty on officers to look for hazards, identify risks and prevent them from causing incidents, not just react to an incident after it happens.
An officer’s duty is non-delegable. This means that an officer cannot employ a WHS manager and blame them if something goes wrong – though employing a WHS manager and requiring regular reports from them is one practical step towards exercising due diligence.
Are your officers exercising due diligence?
Under the model WHS legislation, due diligence includes personally taking reasonable steps to:
- acquire and keep current information on work health and safety matters
- understand the nature and operations of the business and associated hazards and risks
- ensure the business has, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety
- ensure the business has appropriate processes to receive and consider information about incidents, hazards and risks, and to respond in a timely manner
- ensure the business has, and implements, processes for complying with their duties and obligations
Batch Mewing advises clients about whether their officers are meeting these obligations by reviewing their processes and recommending practical steps for compliance, specific to their business and industry.
