Fatality sees directors directly charged for breaches of duty under WHS Law

In many small businesses the directors of the business also run the business directly and are personally involved with its day-to-day production and activities.

As “representatives of the PCBU”, directors have strict duties under WHS law, major of which is to ensure the business has a robust WHS management system which includes having measures that ensure risks and hazards are either eliminated or controlled, so no harm comes to its staff and customers.

Here is an example of a recent case where a small business whose directors are also its operational managers failed in their primary WHS duties as directors resulting in a fatality at their premises.  

In SafeWork NSW v Crestville Holdings Pty Ltd; Garben and Stevens [2025] two of three directors of an indoor climbing gym in Sydney were investigated and fined following a fatality at the gym. Two of the three directors ran the gym themselves.

On October 2021, an experienced climber was using an auto-belay while climbing a wall in the main room. The wall was 12.5 metres high, and there were eight possible routes of varying difficulty. Before the climber reached the top of his climb, the lanyard that was supporting his weight snapped. The climber fell approximately 12 metres to the floor and lost consciousness. He later died from his injuries.

All three auto-belays were removed, examined and tested by SafeWork NSW and NSW Fire and Rescue Technical Rescue. This testing found that the auto-belays were overdue for servicing and exhibited significant signs of wear and tear that affected their overall functionality. Additionally, since its installation, there were four entries in the gym’s ‘spinners and ropes’ maintenance log, which noted that the auto-belay used by the climber had not been taking up the slack in the lanyard for the last 1 to 2 metres of the climb. Despite the mentions, nothing was done about the gear.

1. The two directors that managed the business directly took responsibility for their failings and pleaded guilty to charges of breaching their “duty of care” obligation as officers under section 27(1) of the WHS Act, specifically:

2. Failing to require, instruct or direct the company to implement and enforce an appropriate system to ensure the auto-belays were regularly inspected and serviced, including a system for tracking those inspections and the resolution of maintenance issues.

3. Failing to require, instruct or direct the company to provide appropriate information and training to workers in relation to the inspections of these systems.

4. Failing to require, instruct or direct the company to provide appropriate instructions to climbers about discontinuing use of the auto-belays if slack developed in the lanyard.

In addition, the company itself (PCBU) was held liable for its failure to provide safe systems as per section 19(2) of the WHS Act.

Court judgment

While the court did acknowledge that some measures were in place, it noted that these were not sufficiently enforced, i.e. the four reports in the log having been ignored, thereby the issues with the auto-belays were not identified, monitored and resolved.

The company itself was fined $281,250, and the two managing directors were each fined $84,375 plus court costs.

Proactive changes

Following the incident, the directors permanently removed all auto-belay systems from the gym and reviewed its inspection and maintenance procedure. As a result, it implemented a new risk management procedure to ensure that inspections occur daily, logging of issues and remediation is made, quarterly inspections to be done, and engaging external testing and inspections annually. This is now company policy.

Takeaways

This case highlights the role and duties of directors in ensuring the business they represent and manage has safe systems and that it’s WHS management system is effective.

Smaller businesses where the directors directly manage the business, benefit from having directors who are physically there on-the-job, and have first-hand observation and solid experience with the delivery of their company’s product or service. In larger businesses directors cannot always oversee things personally and instead utilize their leadership team to assist with their assurance role in the business. They cannot offload their responsibilities to others but they can get help.

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us by email at train@courtenell.com.au or phone us on 02 9552 2066