Director Slammed Over Fatality: When Due Diligence Fails, Workers Die

On 23 Jul 25, the NSW District Court delivered a clear and uncomfortable message to company officers. Paul Whitmarsh, director of AWB Contractors Pty Ltd, was convicted and fined $300,000, close to the statutory maximum, for failing to exercise due diligence in connection with a fatal workplace incident at Rozelle Bay in Jan 21.

The Court was unequivocal. The death was foreseeable, preventable, and directly linked to long-standing failures in how safety was managed at an officer level.

A director was fined almost the maximum amount for failing to exercise due diligence.

The fatal incident

AWB Contractors was engaged to recover a submerged steel yacht using a crane. During a poorly conceived lift, directed by Whitmarsh himself, the yacht’s mast failed and collapsed, striking a worker and causing fatal head injuries.

The operation was fundamentally unsafe.

There was:

• No safe work method statement

• No crane lift plan or lifting analysis

• No verification of operator licensing

• No risk assessment

• No competent salvage dive team

• No effective PPE oversight

This was not a momentary lapse or a paperwork oversight; it was a complete absence of basic controls for a high-risk lifting operation.

At the centre of the safety system, but absent in practice

Judge David Russell found that Whitmarsh “was at the centre of the AWB safety system”, yet failed to ensure even rudimentary risk management processes were in place.

The Court identified sustained and systemic failures, including:

• No documented safe systems of work

• No processes to verify competency or licensing

• Directing an unlicensed worker to operate the crane

• Approving use of the yacht mast as a lifting point

• No steps taken to ensure supervision or PPE compliance

These were not isolated errors made on the day, and reflected how the business was operated over time.

No remorse, no learning, no change

Of particular concern to the Court was Whitmarsh’s attitude after the fatality.

Rather than acknowledging his role in creating the risk, Whitmarsh attempted to deflect responsibility, suggesting the deceased worker “found himself in a circumstance of risk”. Judge Russell described this position as “cynically opaque” and wholly inadequate.

More troubling still, evidence showed that Whitmarsh continued to operate a materially identical business under a different name, with no demonstrated improvement to WHS systems or governance.

From a sentencing perspective, this mattered as the absence of remorse, insight, or corrective action weighed heavily against him.

The penalties

The Court imposed:

• $300,000 fine on Whitmarsh personally, from a maximum of $353,430

• $765,000 fine on AWB Contractors Pty Ltd, from a maximum of $1.76 million

These penalties were not symbolic and reflected the Court’s view that officer-level failures in high-risk work demand personal accountability.

What this case actually tells officers and PCBUs/Employers

This decision reinforces several points officers should already understand, but too often ignore.

Due diligence legislation is not passive; it requires officers to actively ensure that systems exist, are implemented, and are effective.

Delegation does not discharge duty. If you delegate safety tasks, you must verify competence, planning, and execution.

High-risk work demands formal planning. Lifting operations, crane work, and salvage activities require structured analysis, not improvisation.

Courts assess culture through conduct, so it matters not what policies say, but how work is actually done, and what officers accept.

Final reflection

This case is not about hindsight. It is about long-term failure to comply with the law that has required it for years.

A worker is dead.

A family carries that loss permanently.

The Court was clear: this outcome flowed directly from how safety leadership was, or was not, exercised at the top.

Due diligence is not paperwork, nor intent. It is action, verification, and sustained oversight.

Legislation even outlines the duty to engage or employ a suitably competent person to provide advice on how the PCBU/Employer can meet duties imposed on them by law. However, in this case, I don't think that would have ever been an option.

Remember, it's a decision to take the red pill or the blue pill...