Director Acquitted of Forklift Breach
Worker at a logistics company was struck and seriously injured by a forklift in 2020, and despite SafeWork NSW alleging a breach of duty by the director, a recent (March) court hearing has cleared him of negligence.
During the hearing it was noted and accepted that directors do not have the same duties as companies, and that directors are not expected to do everything the business is required to do. However, directors are required to ensure effective systems are in place and the necessary resources provided for compliance.
Why was the Director Acquitted?
We think the key lessons from this case come from the judge’s commentary on why the director was cleared of negligence, including:
The director demonstrated a personal interest in safety of the workers.
The director appointed a WHS manager.
The WHS manager claimed there was a process in place for continuous safety improvement, and a traffic management template was sent to each depot.
The incident site did implement the “3m rule” around forklifts, but it was not fully implemented by the local team.
SafeWork NSW failed to particularise the ways in which the director failed to exercise due diligence, and there was a lack of evidence that he was not a “hands on” director when it came to safety.
The WHS manager gave evidence that the director visited each of the depots and took an active interest in ensuring safety matters were attended to, and he requested safety matters to be fixed right away.
No evidence suggested the director could not place confidence in the WHS manager carrying out his health and safety duties.
The failure of the WHS manager to mandate separation of forklifts from pedestrians was a failure of the company (PCBU), not necessarily a failure of the director to exercise due diligence.
Safety Action can assist with due diligence reviews, executive briefings and key risks registers, if interested
