Australia: Safety, something that you ought to know about...

In this In Brief, we examine a prosecution that WorkSafe WA Commissioner Lex McCulloch described as one that "illustrates that directors have an obligation to directly intervene if necessary in situations where unsafe work practices are taking place".

In Fry v Keating [2013] WASCA 109 (23 April 2013), the Western Australian Supreme Court, Court of Appeal served a timely reminder that ignorance of occupational health and safety matters is no excuse for company officers.


Section 19 of the Occupational Safety and Health Act 1984 (WA) (OSH Act) requires an employer, so far as is practicable, to provide and maintain a working environment in which its employees are not exposed to hazards.

Section 55 of the OSH Act provides that where a body corporate is guilty of an offence under the OSH Act, and it is proved that the offence occurred with the consent, connivance of, or was attributable to any neglect on the part of any director, manager, secretary, other officer of the body (or any person purporting to act in the capacity of an officer/ manager), that person is also guilty of that offence.

The policy underlying section 55 is that a company operates at the direction of its controllers. Directors and other officers determine a company's approach to occupational health and safety. Section 55 of the OSH Act holds those persons accountable if the company breaches its obligations because of their consent, connivance or neglect.


A rigger (Mr Murrie) employed by D&G Hoists and Cranes Pty Ltd (D&G Cranes), a crane and hoist hire company, was killed when a pack of 16 crane components – stacked interwoven and weighing over 375 kilograms each (known as a L68 pack) – fell from a crane and struck him.

D&G Cranes was prosecuted by WorkSafe WA for breaching section 19 of the OSH Act. Two directors of the company were also prosecuted on the basis that the company's breach was attributable to their neglect, as a result of the operation of section 55.


The evidence revealed that there were two methods of lifting the L68 packs:

  • Method 1: which was a safe and appropriate method where all parts were encapsulated; and
  • Method 2: which was an unsafe method where all parts were not secure and some parts were at risk of falling; some riggers had been known to use Method 2 in the past.

In 2004, the risks associated with the appropriate methods of slinging a L68 pack had been identified and the directors of D&G Cranes had resolved with the Yard Supervisor that Method 1 should be the only method adopted.

The Yard Supervisor had a number of administrative duties as part of his role which prevented him from providing his full attention to the work carried out in the yard.

In this instance, the L68 pack had slipped when it was being lifted using Method 2, which had previously been banned.

The core evidence focussed on the fact that the directors were aware that:

  • there was a risk/hazard in the yard in relation to lifting the L68 packs;
  • moving the L68 packs using Method 2 was highly dangerous and created a risk of serious injury and/or death; and
  • Method 1 was the appropriate lifting method, which should have been used.


At first instance, it was held that:

  • D&G Cranes had failed to ensure that Method 1 was in place and enforced at the time of the incident;
  • this omission resulted in Method 2 being adopted;
  • Method 2 was extremely dangerous and its use in the yard demonstrated a failure by D&G Cranes, so far as was reasonably practicable, to provide and maintain a working environment where its employees were not exposed to the risk of being injured or killed as a result of being crushed or hit by a falling L68 pack; and
  • D&G Cranes' failure caused the death of Mr Murrie.

D&G Cranes was convicted of failing to ensure a safe working environment and fined $90,000. The two directors were also convicted on the basis that the offence by D&G Cranes was attributable to their neglect. They were each fined $45,000. They appealed to the Supreme Court of Western Australia.


In the Supreme Court, McKechnie J held that the directors were not remote from the business of D&G Cranes. Instead, the directors were active, hands-on and (in the circumstances) were neglectful in being unaware that the supervision system had broken down and by failing to enforce the use of Method 1.

His Honour stated that:

"Their eyes might have been shut to the possibility that Method 2 might, on occasion, be used, but in the absence of a system to enforce the use of Method 1 at all times, or to have a proper induction procedure in place, the directors should have recognised the possibility that an employee might not always use Method 1".

McKechnie J dismissed the directors' appeals against their convictions.


The directors then appealed to the Court of Appeal on the grounds that the prosecution had failed to provide evidence that they ought to have known that Method 2 was being used.

The directors relied on evidence that:

  • there was a system in place to report unsafe work practices which involved supervision by a Yard Supervisor and the hiring of qualified riggers and dogmen;
  • when the directors visited the yard they would correct the employees if they witnessed any unsafe work practices;
  • neither of the directors saw Method 2 being used in the yard; and
  • one director was overseas at the time that the incident occurred.

The Court of Appeal rejected the directors' arguments and held that the findings at first instance, which were not contested on appeal, were sufficient to support their convictions. It held that the directors had an obligation to ensure that Method 1 was in use and that they had failed to do so because the directors knew:

  • of the hazards and risks associated with moving L68 packs;
  • that Method 1 was the safe method which ought to have been used at all times;
  • that Method 2 was used in the workplace in the past;
  • that none of the employees had a consistent, documented induction process;
  • there was no written, safe working procedure documenting Method 1;
  • their employees were not formally trained in Method 1;
  • they did not have a dedicated occupational health and safety officer; and
  • the Yard Supervisor had administrative duties which required his attention away from the yard.

The Court of Appeal considered that, having this knowledge, the directors were not entitled to assume that Method 1 was being used at all times. The directors needed to take reasonable steps to verify and ensure that Method 1 was, in fact, being used.

Accordingly, the Court of Appeal held that D&G Cranes' failure to ensure the health and safety of the employee who was killed was attributable to the neglect of each of the directors. It considered that both directors had failed to ensure that the company had in place a safe system of work for the slinging of L68 packs, and failed to enforce Method 1 (which they knew to be safe).


Fry v Keating confirms that in Western Australia, for the purposes of section 55 of the OSH Act, 'neglect' concerns not only what the officer or manager knows at the time of the breach but also what they 'ought to have known' in the circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.