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Details of successful prosecution against E225536 - Company

Incident description

The defendant company held duties under s.19 (2) of the Work Health and Safety Act 2011 being a business that hired land borne inflatable amusement devices (jumping castles).  It employed 9 people on a casual basis to erect and dismantle the amusement devices.  The castle was erected by an employee of the defendant company who had installed only three anchorage points (one being a sandbag).

Court result

On 27 February, 2016 a 3 year old child was on the inflatable castle when it dislodged, became airborne and tumbled due to a gust of wind. The castle travelled approximately 50 metres. The child was within the castle and received minor injuries.  There were no other children in the device. The child was not at risk of being thrown from the castle as it had mesh sides and a padded ceiling.

The defendant pleaded guilty in the Richlands Magistrates Court on 16 November, 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.

Magistrate Matthew McLaughlin fined the defendant $15,000 and ordered professional and court costs totaling $1591.55. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate acknowledged that the defendant company, through its sole director, had undertaken research, including researching the relevant Australian Standard, with respect to these types of devices before he commissioned manufacture of them from a company in China.  He accepted that when the devices were purchased and delivered there was no operations manual included but the director of the defendant developed one based on his interpretation of the relevant Standard.  His Honour further accepted that this earlier manual did not fully incorporate what the Standard detailed with regard to how the device is to be anchored for various wind environments, and this is what has led to the device only having three anchorage points at the time when it had the capacity for 9 anchors to be installed.  Magistrate McLaughlin acknowledged that when the device was set up the morning of the incident there was no discernable wind and that the event occurred as a result of what was described by witnesses as a “freak gust”.

The court noted the company had not made a profit in the last two years and its workforce was predominantly casual. His Honour accepted that the device had been installed by this worker on approximately 500 prior occasions without incident and whilst not a defence, it is relevant to whether the defendant company ought to have been on notice that its work method for anchoring was inadequate.

In deciding penalty, Magistrate McLaughlin observed that the degree of culpability was at the lower end of the scale and the injuries were of little if any significance in determining penalty.  His Honour took into account the defendant had not been prosecuted previously for any work health and safety breach and co-operated with the investigation. Extensive post-incident measures were implemented, including engaging an expert to determine how many anchors were required on the device (this resulted in one further anchorage point being installed). The defendant re-drafted its operations manual to specifically address the issue that had occurred (the work system required all anchorage points to be utilised), as well as re-training its workers in how to adequately set-up the amusement devices. His Honour noted that the defendant company had entered an early plea of guilty.

Considerations for prevention

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

When working in the recreation services industry where there is exposure to risks from inflatable devices not being adequately anchored, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

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, obligation holders should consider:

Details

Industry:
Arts and recreation services
Defendant:
E225536
Date of offence:
26/02/2016
Injury:
Minor abrasions and minor bruising
Court
Richlands Magistrates Court
Magistrate:
Magistrate Matthew McLaughlin
Legislation:
s.32 of the duty under s.19(2) Work Health and Safety Act 2011
Decision date:
16/11/2017
Penalty:
$15,000
Maximum Penalty:
$1,500,000
Conviction recorded:
No
CIS event number:
E225536
Last updated
02 July 2018

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