“Verify, don’t perform: The real test of WHS Officer due diligence”

Off the back of yesterday's article, here is another Officer / due diligence case (Guilfoyle v Walshaw (Queensland Magistrates Court, 2024)) that sets expectations of what good should be.

In this case, the Officer was acquitted of a charge of breaching Office duties under the Work Health & Safety Act (Qld)

Facts of the Case

Context and incident

• The defendant (Walshaw) was the former Managing Director (Officer) of a company operating a zipline course in Far North Queensland.

• After she had left the business, a catastrophic incident occurred:

  • A patron was killed

  • Another was seriously injured.

• The cause was failure of the zipline, specifically:

  • Inadequate maintenance of wire rope grips securing the cable.

Prosecution case

• The Regulator alleged a breach of Officer due diligence duty.

• Key allegations included failure to:

  • Ensure engineering design and oversight

  • Require safer installation methods

  • Verify competent installation

  • Understand/apply relevant standards and regulations.

Organisational structure

• A critical fact:

  • Operational WHS responsibility sat with an Operations Manager

  • That manager was experienced, competent, and resourced

• The Managing Director’s role was more strategic (marketing, sales, administration).

Decision

Outcome:

• The Magistrates Court acquitted the officer of breaching due diligence duties.

Key judicial findings

1. Clear distinction between Officer and PCBU duties

   • Officer duty is “markedly different” from the operational duty of the PCBU.

2. Delegation was appropriate and reasonable

   • The Operations Manager:

     • Had defined WHS accountability

     • Was competent and experienced

   • Therefore, reliance on them was legitimate.

3. No requirement for “micro-management”

   • The Court rejected the idea that the Officer should:

     • Direct installation methods

     • Personally control technical decisions

   • That would amount to operational interference, not due diligence.

4. Active oversight existed

   • Evidence showed:

     • Regular engagement with management

     • “Free flow of information”

     • Access to resources and expertise.

This supported that a functioning WHS system existed.

5. Failure of prosecution evidence

   • Critically, the prosecution:

     • Did not prove deficiencies in the WHS system

     • Did not show what the Officer knew or should have known

     • Did not establish causative failures linked to the Officer.

Legal Learnings

Due diligence is systems-based, not task-based.

• Officers are required to:

  • Ensure systems exist and function

  • Not perform or control technical work

• The legal test is whether “reasonable steps” relate to system governance, not operational execution.

Delegation is permissible but must be structured

• Courts accept:

  • Delegation to competent, accountable personnel.

• However, it must be accompanied by:

  • Clear role delineation

  • Adequate resourcing

  • Ongoing visibility/engagement.

This is a critical clarification for large organisations.

No obligation to eliminate all risk.

The case reinforces:

• Officers are not guarantors of safety outcomes

• Nor required to ensure risk elimination

• The obligation is to ensure a reasonable system for managing risk.

“Micro-management” is not due diligence

• The prosecution’s argument failed because it:

  • Confused Officer duty with operational control

Prosecution threshold is high (proof of a negative)

To convict, Regulators must prove, beyond all reasonable doubt, the Officer did not take reasonable steps.

• This requires clear evidence of:

  • System failure

  • Knowledge gaps

  • Governance breakdowns.

The absence of this evidence was fatal to the case.

Timing and causation matter

• The incident occurred after the officer left the business

• This weakened the causal link between:

  • Alleged failures

  • The actual fatal outcome.

Executive / Officer Due Diligence Lessons

From a governance and WHS leadership perspective, what “good” looked like in this case:

• Defined WHS accountability at management level

• Competent operational leadership

• Access to resources, expertise, and standards

• Regular engagement and information flow

• Evidence of a functioning safety management system

Critical takeaways for Officers

1. Build and verify systems, not tasks.

   • Focus on:

     • Governance frameworks

     • Assurance mechanisms

     • Reporting and verification that controls are working as intended.

       
       

2. Delegate intelligently.

   • Ensure:

     • Competence

     • Clear accountability

     • Resourcing.

       
       

3. Maintain active oversight.

   • Regular engagement with WHS leads

   • Evidence of challenge, verification, and enquiry.

     
     

4. Avoid operational overreach.

   • Do not:

     • Direct technical methods

     • Substitute expert judgement.

       
       

5. Document due diligence.

   • This case turned heavily on evidence

   • Officers must be able to demonstrate:

     • What they did

     • What they knew

     • What systems existed.

       
       

Bottom Line

Guilfoyle v Walshaw is a landmark clarification of Officer liability under WHS law.

It confirms that:

• Due diligence is about governance, oversight, and systems

• Not hands-on operational control

• And that competent delegation and active oversight can satisfy the statutory duty.