October 2020 will mark the fourth anniversary of the tragic deaths of four patrons on the malfunctioning Thunder River Rapids Ride (TRRR) at Dreamworld. The tragedy has triggered a suite of reviews by governments around Australia and has been one of the catalysts for the introduction of industrial manslaughter laws. It has also highlighted the need to ensure that risks to health and safety are eliminated on an ongoing basis, and that they cannot be neglected over time. It has also demonstrated the need to cultivate a workplace culture that prioritises safety, as well as continually reviewing the businesses operations, and addressing foreseeable hazards to ensure the business takes appropriate steps to address risk.
Earlier this year, on 24 February 2020, the findings and recommendations of Coroner James McDougall of the Inquest into the deaths of Kate Goodchild, Luke Dorsett, Cindy Low & Roozbeh Araghi at Dreamworld were released (the Findings).
In particular, the Coroner found:
- that the direct cause of the incident was a failed water pump, which resulted in the water levels reducing significantly, causing the raft to become caught on the rails.
- The young ride operator had only been trained on the TRRR the morning of the incident and did not know that there was an emergency stop button within her reach and had been told "not to worry about that button, no-one uses it".
- Operators were required to conduct over 36 checks in less than a minute, which were described as 'impossible' to manage. There was no drill training for Dreamworld staff for potential emergency situations.
- The water pump had failed twice earlier on the day of the incident and had been reset by a park technician because the park's electrical team was occupied with other issues.
- At the time of the incident Dreamworld had a policy that a ride was to be shut down and reported to an engineering supervisor after two "exact malfunctions" occurred within 24 hours.
- Cuts to repairs and maintenance budgets had been made seven months prior to the incident.
Additional comments following the December hearing:
- Dreamworld relied on its 30 year "trouble-free" record.
- Staff did not know what to do when a radio call was made saying that there was a raft in the conveyor – the first indication something was wrong.
- Missing slats on the conveyor belt created a void large enough for the rear of the second raft to be drawn into the gap.
- Staff operating the ride were given 90 minutes of training.
- The experts raised concerns about the tired Velcro seatbelt onboard and that the ride operator's control panel was not designed with safety in mind.
The Prosecution
On 21 July 2020, the independent Work Health and Safety Prosecutor, Mr Aaron Guilfoyle laid charges against Ardent Leisure Limited as a result of the tragic deaths on the TRRR.
Ardent Leisure has been charged with three offences under section 32 of the Work Health and Safety Act 2011. It is alleged Ardent Leisure failed to ensure, so far as was reasonably practicable:
- the provision and maintenance of safe plant and structures;
- provision and maintenance of safe systems of work; and
- the provision of information, training, instruction or supervision that was necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking.
We suspect the prosecutor did not pursue a category 1 charge against Ardent Leisure, but rather the lower category 2 offence, because of the outcome of the recently appealed Lavin Case which centred on the defence to a category 1 charge under section 31 finding the conduct is not criminal if there is “reasonable excuse”. As for the new Industrial Manslaughter laws implemented in Queensland, in part as a response to the Dreamworld fatalities, these are not retrospective and were therefore not available to the prosecutor.
The maximum penalty is a $4.5 million fine, with each charge carrying a maximum penalty of $1.5 million fine. The matter was mentioned in the Southport Magistrates Court on 29 July 2020. Ardent Leisure pleaded guilty to all three charges. Formal arraignment is set down for 28 September 2020.
Key Findings of the Inquest
The Findings outlined that Dreamworld’s management placed reliance on "frighteningly unsophisticated" safety systems and unqualified staff, and the absence of holistic risk assessments across 30 years.
The TRRR's numerous "obvious hazards" included the large gap and pinch point at the end of the conveyor system, and "would have been easily identifiable to a competent person had one ever been commissioned to conduct a risk and hazard assessment of the ride", the Coroner said.
While the officers have not been prosecuted the message to officers is clear.
The Findings emphasise that officers are uniquely positioned to influence the behaviour and culture of an organisation. The Coroner found Dreamworld management's ignorance of proper safety standards reflected a "systemic failure to ensure the safety of patrons and staff", and "such a culpable culture can exist only when leadership from the board down are careless in respect of safety".
Other Findings of the Dreamworld Inquest
Undue reliance on unqualified personnel controlled safety standards
Dreamworld relied heavily on a long-term employee engineer who was not a registered professional engineer with relevant expertise, and on ride operators without the requisite qualifications to identify risks and associated issues, which the Coroner described as "unfathomable". The Work Health and Safety Prosecutor has captured this finding in the third charge against Ardent Leisure.
Being on notice of the risks from previous incidents and failing to take action
Previous incidents on the TRRR, particularly in 2001 and 2014, should have alerted Dreamworld to the hazards present on the ride, particularly the collision of rafts on the watercourse. These incidents should have prompted a thorough risk and hazard assessment of the ride, including the design, looking beyond the circumstances of the particular incident. In accordance with the hierarchy of controls, plant and engineering measures should have been considered as solutions to identified hazards. Ardent Leisure's inaction after the previous incidents compromised their ability to maintain safe plant and structures, as well as safe systems of work. This was captured under the Work Health and Safety Prosecutor's first two charges.
Lack of risk assessments
Given no proper steps were ever taken to identify risks by qualified people, it was "unsurprising" that many risks and hazards were not raised with departments and management was unaware of them.
"It can be concluded beyond doubt that in the 30 years prior to this tragedy, Dreamworld failed to undertake, either internally or via an external auditor, a holistic examination of the TRRR by a suitably qualified engineer, so as to ensure its safe operation through the identification of the high and low probability risks and hazards present," the Coroner found. Ardent Leisure's failure to conduct risk assessments can be linked to the Work Health and Safety Prosecutor's second charge regarding the provision and maintenance of safety systems of work.
Departments operating in silos
Dreamworld's safety department was "not structured to operate effectively": its safety systems were "immature", its document management was poor, it didn't have a formal risk register and it didn't conduct any holistic risk assessments of rides, with "the general view being that the E&T [engineering and technical] department were responsible for such matters, inhibiting Ardent Leisure's ability to implement and maintain safe systems of work.
What does this mean for businesses?
The Dreamworld tragedy has triggered a suite of reviews by governments around Australia and has been one of the catalysts for the introduction of industrial manslaughter laws.
The most recent is NSW's Work Health and Safety Amendment (Review) Act 2020 No. 10, which came into effect on 10 June 2020 and expands category 1 offences to include a fault element of "gross negligence". This means that a duty holder commits an offence if they are grossly negligent in exposing workers or other persons to a risk of death or serious injury or illness. As opposed to the standard of "recklessness", gross negligence does not require prosecutors to prove any intent to disregard a risk of death or serious injury or illness. This is expected to make it easier for regulators to prosecute category 1 offences in NSW.
Some of the key themes that you need to be aware of include:
- ensuring that risks to health and safety are eliminated is an ongoing duty that cannot be neglected over time or as new risks arise. Businesses need to be periodically auditing safety risks and compliance, identifying risks as they arise, putting in measures to eliminate or control the risk, and reviewing the effectiveness of existing safety measures. Officers have a key role and a legal duty in driving these processes.
- workplace health and safety is as much about culture and people as it is about documentation and formal compliance. There needs to be adequate resources and avenues for people to raise safety concerns without fear of consequences, and when issues are raised businesses need to treat the concerns seriously and take steps to review and address issues of concern. Directors and officers must actively engage in creating a culture that priorities safety by:
- providing regular training opportunities;
- providing personal protective equipment where possible;
- demonstrating leadership; and
- making company values clear.
- in high-risk environments, there is a higher bar to determine what is reasonably practicable to eliminate risks. In those cases, businesses must ensure that they have adequate resources to address WHS risks (whether that be in relation to the upkeep of plant and machinery), ensuring training is adequate and focused on risks specific to the workplace, or planning for maintenance shut downs or closures to address safety risks.
- complacency can have dire consequences – for people (workers and others) and the business. The tragic outcome of the multiple failings in the Dreamworld case speaks for itself. However, it is also clear that increasingly the public expects safety to be a high priority for businesses and will hold organisations accountable.
- continually reviewing your operations, and assessing foreseeable hazards to ensure you take appropriate steps to address risk, for example by:
- implementing thorough safety management policies and procedures;
- periodically maintaining and servicing important plant and equipment;
- remembering that your health and safety duties extend outside of the workforce and apply to members of the public and others.
- ensuring personnel operating plant and equipment are adequately trained to do so. This includes ensuring they have the relevant expertise from the outset, but also ensuring they are regularly provided with refresher training. The training will clearly focus on the key day to day operational requirements, but must also focus significantly on how to deal with the plant/ equipment when things go wrong.
- use previous incidents, including minor ones, as an opportunity to learn and improve. Incidents should prompt an investigation into the cause of the incident and steps involved to prevent similar incidents from occurring in the future.
- conduct regular risk assessments – internal and external by engaging an auditor. Risk assessments need to identify the high and low risks, as well as hazards present to ensure the equipment operates safely.
- ensure departments across the business are communicating with one another. Implement strong document management, as well as a formal risk register so that the entire business is aware of the risks.
- ensuring sufficient resources are assigned to the management of WHS issues, in particular repairs and maintenance of plant and equipment.
UPDATE 30 SEPTEMBER
On 28 September 2020, Ardent Leisure was handed a $3.6 million fine. Southport Magistrate Pamela Dowse noted that Ardent Leisure's control measures and safety standards "were grossly below the standard that was rightly expected of it". Furthermore, the Magistrate noted that "a variety of control measures were available to it, which would have minimised or eliminated the relevant risk." The $3.6 million penalty is the largest fine in the history of Australian WHS prosecution.