Details of successful prosecution against E211926

Incident description

On 7 April 2015, two adult patrons were passengers in the Octopus ride, which was designed to carry up to two adult passengers per car in 'cars' rotating in an up and down motion. The car disconnected from the small hub allowing it and the passengers to move uncontrolled from the ride. The car came to a stop on the ride floor with both occupants secured inside. The car skidded approximately six metres before coming to rest. One patron sustained a minor laceration to the forehead.

The defendant company held duties under s. 21(2) of the Work Health and Safety Act 2011 being a person conducting a business or undertaking which involved operation of an amusement theme park.

Due to inadequacies in maintenance, a number of fatigue failures existed within the arms attaching the cars. Since 2003 the ride was owned and registered by the defendant for use in Queensland. It comprised a central hub where the head of the Octopus ride was positioned. Below the head on the central hub was one set of five tentacles and one set of five arms extending approximately 18 metres. At the end of each arm was a small hub with four small arms attached. Each small arm supported a car that was free to rotate in either direction unpowered. The ride commenced and took approximately one minute to gain maximum height. Around this time there was a loud cracking sound as the car detached.

An investigation was carried out by Workplace Health and Safety Queensland disclosing:

1. The defendant had a generic 'Operators Report' used daily for all amusement rides in the park. A maintenance section entitled 'Maintenance – Opening rides' was completed by the Technical Services staff on 7 April 2015.
2. Neither the ride's maintenance regime, nor the maintenance manual provided by the manufacturer,  identified hazards caused by fatigue in screwed joints, nor that the risk could be addressed by utilising pre-determined service intervals
3. Annual inspection of machinery services reports were provided by an external provider. These were visual and did not descend into analysis of the condition of screws
4. It was likely that tapped threads could have been damaged as a result of insufficient tightening of the screws permitting breakage.

Court result

The defendant failed to adequately assess the hazard of metal fatigue due to insufficient tension in the screwed connection of the small arm to the hub joint. It pleaded guilty in the Maroochydore Magistrates Court on 21 July 2016 to breaching s. 32 of the Work Health and Safety Act 2011, and was sentenced.

Magistrate Annette Hennessy fined the defendant $25,000 and ordered professional and court costs totaling $1079. No conviction was recorded.

In reaching a decision, the Magistrate accepted there were certain maintenance issues with torque and tightening of the screws. But there was no systemic maintenance failure. Her Honour noted favourably several distinguishing features from the comparable case ranges tendered.

Having regard to objective assessment of the seriousness of the offence and the theoretical exposure to risk, her Honour did not consider there were aggravating features. Contrasted to other s.32 matters she determined the appropriate penalty having regard to specific and general deterrence was at the lower end of the fine range.

When weighing up parity, totality, community values, and especially remorse and contrition the court also considered the pro-active post incident behaviour (refer generally to Penalties and Sentences Act 1992, s.9, Guidelines).

The defendant invested in excess of $600,000 which included:

1. Restructured the Technical Services Department to create a specific, dedicated Rides Engineering Department.
2. Recruited an internationally experienced Rides Engineer Manager with more than a decade's experience in the amusement rides industry and with mechanical engineer qualifications.
3. Recruited a new Rides Engineer Supervisor (reporting to Rides Engineer Manager)(salary cost - $75,000).
4. Undertook major ride refurbishment of four major rides.
5. Recruited a new, well regarded, independent engineer to undertake annual rides inspection program commencing September 2016.
6. Undertook additional WHS training across the business at a management level and Rides Engineering Department level.
7. Appointed industry respected safety consultant to:
1. install and support implementation of a new online work health and safety management system
2. indertake an annual audit of the work health and safety management system
3. undertake an independent annual compliance audit of theme park rides to AS/NZS 3533.

Combined with the fact the ride no longer exists, specific deterrence concerning risk exposure from this plant was not in issue and the defendant had taken tangible steps to demonstrate it was a good corporate citizen.
The Court also took into account the defendant had no previous convictions and fully assisted in the investigation and entered a guilty plea at the very earliest opportunity, entitling it to a significant discount on what could have been the case.

The Magistrate also commented specifically on the fact no-one was seriously injured and that the ride had been dismantled and removed from service.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When deciding on and implementing appropriate control measures, obligation holders should ensure:

• audits are supervised or undertaken by suitably qualified and experienced workers using the WHS Regulators' National Audit Tool for Amusement Devices (PDF, 0.48 MB)
• a risk assessment of the task has been completed, documented and evaluated.

Details