Work Health and Safety Prosecutions
The recent announcement of charges being laid against Ardent Leisure Ltd, the operator of Dreamworld is a reminder of the consequences of injury and deaths in the workplace, and the failure to have and maintain safe systems of work.
Queensland Work Health and Safety Prosecutor has filed three charges against Ardent Leisure in the Magistrates Court, alleging the company breached the QLD Work Health and Safety Act (2011) (WHSA).
All three charges attract a maximum penalty of $1.5 million.
The prosecution arises from the 2016 Thunder River Rapids Ride tragedy, when the lives of four people were lost when the ride malfunctioned.
In a coronial inquest which followed, the findings of the coroner were damning of the operators:
Coroner James McDougall found the ride was clearly unsafe and “shoddy” record keeping was also to blame, and stated,
“It is clear from the expert evidence that at the time of the incident, the design and construction of the TRRR at the conveyor and unload area posed a significant risk to the health and safety of patrons,” said McDougall.
“This general ignorance of proper safety and adequate assessments was a recurring theme throughout Dreamworld in many of the Departments and reflects a systemic failure to ensure the safety of patrons and staff by the use of a proper safety management system, with the necessary engineering oversight of high- risk plant.”
Under the WHSA, there is a clear and non-delegable duty upon persons carrying on a business or undertaking (PCBU) to ensure the safety of their workplaces for workers and invitees.
This duty includes:
• Having proper and adequate maintenance systems in place
• Actual implementation and use of those systems
• Proper procedures for training of staff
• Keeping accurate and complete records of maintenance and training
• Conducting safety audits and assessments on a regular basis appropriate to the risk,
• Ensuring the design or layout of any operating plant and equipment is safe for users
• Compliance with specific codes
A breach of the duty can result is significant penalties.
The WHS Act provides for the following maximum penalties:
It is an offence for a PCBU or a senior officer to negligently cause the death of a worker.
Where a PCBU or a senior officer is found to have committed industrial manslaughter, a maximum penalty of 20 years’ imprisonment applies for an individual applies, or a fine of up to $10 million for a body corporate.
Categories of offences
The three categories of offences for failing to comply with a WHS duty reflect different degrees of seriousness or culpability.
Category 1 – the most serious breaches, where a duty holder recklessly exposes a person to the risk of death or serious injury.
Category 2 – failure to comply with a health and safety duty that exposes a person to risk of death, serious injury or illness.
Category 3 – failure to comply with a health and safety duty.
The magnitude and seriousness of these penalties should leave no doubt that breaches of the duty can seriously impact upon an employer, and proper regard needs to be had for compliance.
If you conduct a business or undertaking, and have a workplace injury or death, and want legal advice or assistance, please contact us.
