Details of successful prosecution against E206667

Incident description

The defendant held duties under s.19 (1) of the Work Health and Safety Act 2011 being a person conducting a business or undertaking. He was a sole trader running a business supplying and operating amusement rides to fairs and carnivals.

On 9 December 2014 his business was hired to supply rides to a school for their Christmas Carols event. One of his workers was fatally injured while the chair-o-plane (also known as a “high flyer”) was dismantled post event.

The dismantling of the ride required a hydraulic system to keep the centre pole raised while a worker had to place himself directly under the pole to remove the bolts. Once the bolts were removed from the centre pole, the only protection workers had from the telescoped centre pole was the hydraulic system.

A 20 year old casual worker, who had received no training in relation to dismantling this ride, was instructed to climb the ride and remove the bolts from the high flyer centre pole.  As he removed the last of the bolts the centre pole dropped suddenly, causing him to be trapped by the pole and chains  attached to it.  Despite attempts to remove the centre pole and chains from the worker, he died at the scene from traumatic asphyxiation.

Court result

The defendant was prosecuted for requiring workers to work in close proximity to a dangerous component of the ride with no attempts to eradicate or minimise the risk associated with it. Reliance was placed solely on the hydraulic system to maintain the centre pole and attachments in position, when there should have been positive protection from gravitational hazards.  Specifically, the defendant did not ensure the health and safety of his workers in that he failed to:

• identify hazards associated with reliance on hydraulic systems in the high flyer during dismantling and set up;
• implement and monitor controls for hydraulic failure on the high flyer during dismantling and set up; and
• provide adequate training and information to the worker to ensure he, in the course of his work, was able to identify hazards associated with hydraulic failure in the high flyer and adequately assess consequential risk.

The defendant pleaded guilty in the Ipswich Magistrates Court on 22 March 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet his work health and safety duties and was sentenced.

Magistrate David Shepherd fined the defendant $80,000 and ordered professional and court costs totaling $1689, along with $1485 in disbursement costs relating to the production and serving of witness summonses, as the matter was a late plea. No conviction was recorded.

In reaching a decision, the magistrate noted the defendant was operating the business as an individual and therefore the maximum penalty was $300,000.  Importantly, the magistrate noted that the failure existed even without the tragic consequences that flowed, however, that a worker died was a relevant factor be taken into account and highlighted the importance of identifying and managing the risk.

Despite the ride operating for a long period of time without issue, the magistrate accepted that long immunity from accident does not dissolve an obligation to identify risks of dangerous machinery. It was potentially the lack of incident with the plant that led to a level of complacency about it.  However, the magistrate affirmed that complacency does not relieve a person from their responsibilities. The magistrate noted the objectives of the Work Health and Safety Act and the need for deterrence against complacency in the work place.

In deciding penalty, Magistrate Shepherd took into account the defendant had not been prosecuted previously for any work health and safety breach and was a young man with a young family. He also noted the matter was a late plea of guilty, only indicated six days prior to the trial listing, and the defendant only co-operated with the investigation to the extent he was statutorily required.

Considerations for prevention

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

When working in the recreation industry where there is exposure to risks from fatal traumatic asphyxia, duty holders should apply a risk management approach to ensure the selection of suitable control measures so that workers could not be struck by the telescopic post if hydraulics failed.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the risk of serious injury or death, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)

Details