In late October this year, four patrons were killed on a ride at Dreamworld on the Gold Coast. The Queensland Government commissioned safety audits of the theme park, which have now concluded with the issue of three prohibition notices and seven improvement notices.
Most major theme parks in Queensland including Wet ‘n’ Wild, Movie World and Sea World are still being audited. The audits are scheduled to be completed soon, but will direct further attention and scrutiny towards maintenance records. In this article we try and focus on what businesses can proactively do now to hopefully avoid the tragic results at Dreamworld.
Accidents happen
It is important to note that WHS legislation (whether the harmonised scheme or the state-specific acts) does not punish or criminalise accidents per se. It targets ‘unsafe systems of work’, or in other words, the failure to take reasonable precautionary measures aimed at prevention and minimisation of risk in the workplace.
Even the most serious category of offending does not require any injury or actual damage whatsoever. Consequently, prosecutions could result from deficiencies found in the maintenance records of any of the theme park operators currently being audited, even where no ‘incident’ has occurred and nobody has been hurt.
Hindsight
Pre-emptive regulator involvement, particularly on the scale of Queensland’s current industry-targeted audits, is rare. What is more common is that a regulator becomes involved after an accident does occur. In this situation, you will be at the mercy of hindsight and records are no less important.
It doesn’t matter if everything seemed fine prior to an accident and that there were no warning signs. If you haven’t taken precautionary steps, for example, to maintain plant and equipment through regular inspections and servicing, the prior absence of red flags will not provide an adequate defence.
Past prosecutions
Similar incidents to the Dreamworld tragedy have occurred previously and formed the basis for regulatory prosecutions. Inspector Walker v Earthquake Promotions Pty Ltd (No 2) [2014] NSWIRComm 5 is a smaller scale example involving less dire consequences. In that case an amusement ride provider was convicted and fined $40,000 for failing to properly maintain a Ferris Wheel that broke during operation, seriously injuring several patrons. The operator’s log books were scrutinised after the accident. One of the most damning finding was that those records showed that certain critical components had not undergone the required testing since 1998.
The dangers surrounding rollercoasters and other rides are conspicuous, but the same principles apply to any plant or equipment, no matter how mundane or simple. In DPP v Frewstal Proprietary Limited [2015] VCC 731, an abattoir operator was convicted and fined $250,000 for failing to properly maintain a vehicular loading ramp, which collapsed, killing a driver. The court found that the abattoir operator should have implemented a system of routine inspections by qualified third parties to detect and prevent corrosion and other types of structural deterioration.
With fines now up to $3 million for corporations and $600,000 and/or 5 years jail for individuals, there will be quite a lot of interest in the Dreamworld case. Let’s also look at what practically could be done in your business.
Due diligence obligations
All ‘officers’ (i.e. key decision makers) of an organisation must ensure that their business complies with its primary duty. This is referred to as the ‘due diligence obligation’. Officers can be held personally liable for their failure to do so, even if their role is not directly concerned with WHS. This will be a key issue for the officers of Dreamworld to be considering.
Relevantly, there is a due diligence obligation to ensure that an organisation “has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way”. If your organisation faced a similar issue how would you or your officers personally be able to respond to this issue? Do you officers understand and/or have received training in due diligence? If not, why not?
Your practical obligations in relation to plant and equipment
All WHS compliance steps should be undertaken in a way that is proactive, structured and documented. Compliance should never be ad hoc, unrecorded, or reactive.
Some of the core compliance obligations in relation to plant and equipment are audits, inspections, maintenance and record keeping. If you have structured, documented maintenance procedures, the chances of prosecution or other legal action is greatly reduced, even in the case of poor outcomes involving accidents, injuries or even death.
Audits
Most business and organisations have a large range of ‘conceivable’ risks, but a much smaller number of likely risks. ‘Compliance audits’ may be used to survey the full spectrum of risks and obligations at the macro level. In this way, you can make sure that there are policies and procedures in place for all universal risk areas (bullying, sexual harassment, drugs and alcohol etc.). From here you can identify and prioritise more specific risks and then conduct ‘risk-specific audits’ which devote greater attention to the hazards that need it.
Audits can be conducted internally (by appropriately qualified or experienced personnel) or externally by specialists. A combination of both is recommended with less frequent external audits to bolster actual and perceived legitimacy.
Audits will inform your approach to other compliance measures. There is a crucial difference between learning from past mistakes and being reactive. When is the last time you conducted an audit? How would you describe the absence of any such audit if you haven’t?
Inspections
Any plant and equipment used in a workplace must be inspected regularly. Daily inspections should be undertaken prior to the commencement of work wherever possible. Unlike audits, inspections should generally be undertaken by the people who use equipment. An officer’s non-delegable responsibility is not to supervise every daily inspection. It is to devise and implement a system for inspection that will maximise safety when properly followed and take reasonable steps to periodically ascertain the level of compliance with the system. Could you and the officers in your organisation easily locate, describe and if necessary demonstrate your current system?
Workers should be required to document their inspections. This helps to establish a tangible chain of responsibility leading up to officers. It is worth noting that workers also owe a duty to take care in following the procedures implemented within a business.
Servicing and maintenance
The safety risks posed by human error and negligence are varied, unpredictable and difficult to eliminate. The risks caused by equipment degradation and failure are comparatively easy to eliminate and simple systems of maintenance will go a long way to creating a healthier workplace and safer systems of work.
Servicing and maintenance should be conducted in a regular fashion as dictated by manufacturer instructions and then on an as-needs basis as revealed by audits and inspections.
Incident reports and other records
Whenever your safety system fails or nearly fails, incident reports should be made. This data is extremely valuable for both risk identification and legal compliance. There is a perception that incident reports are proof of culpability. In fact, the opposite is generally true: a system failure does not prove an absence of reasonable precautions and an effort to record and address past failures or incidents shows precisely the opposite.
In addition to incident records, a detailed register of servicing, maintenance, inspections and audits must be maintained because this is the only way to prove compliance. Records should be kept in such a way that they can be easily accessed, organised and analysed. Note that well-kept records will help to identify higher risk areas (by indicating the number and cause of incidents).
Top tips
- Ask yourself: what would your records show in the event of an accident or a near miss? Would you be comfortable with the amount of information available? Do you know exactly how to access the information you collect?
- As an absolute minimum, make sure that you service and maintain any plant and equipment in accordance with Australian Standards and manufacturer directions.
- Utilise internal and external auditing. Supplement more frequent internal inspections and reviews with occasional input from qualified third parties to minimise your exposure to liability.
- Think carefully and practically about the appropriate balance between ‘general compliance audits’ and ‘risk-specific audits’.
- Use the information you gather from audits and inspections to focus your attention towards the highest risk areas.
If you have any queries or would like further information, please contact:
Brett Cassidy
Principal
M: 0438 368 053
E: bcassidy@pageseager.com.au
Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au
Published: 13 December 2016
