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- Unreported Judgment
Guilfoyle v Ardent Leisure Ltd QMC 13
 QMC 13
AARON GUILFOYLE Complainant
ARDENT LEISURE LIMITED Defendant
12.34 PM, MONDAY, 28 SEPTEMBER 2020
BENCH: Thank you. Today the defendant has pleaded guilty to three charges, contrary to section 32 of the Workplace Health and Safety Act 2011. Each charge concerns a breach by the defendant of its primary safety duty under section 19(2) of the Workplace Health and Safety Act to ensure the health and safety of members of the public were not put at risk.
The offences relate to an incident on the Thunder River Rapids Ride at Dreamworld on the 25th of October 2016, in which four members of the public suffered fatal injuries. The complaint was made on the 21st of July 2020 by the Work Health and Safety prosecutor. The defendant advised the prosecution on the 22nd of July that it proposed to plead guilty to the complaint. It confirmed its position before the court on the 29th of July 2020 when the matter was then listed for sentence for today, the 28th of September. It is acknowledged that the guilty pleas of the defendant have been entered at the earliest possible opportunity.
The WHS Act commenced operation on the 1st of January 2012, as part of a uniform scheme adopted in six states and territories. It provides a framework to protect the health, safety and welfare of all workers while at work, and it also protects the health and safety of other people who might be affected by the work.
The Work Health and Safety Act places the primary safety duty on a person conducting a business or undertaking. Compliance with all duties under the WHS Act, including its primary duty in section 19, must be to the extent the compliance is reasonably practical. Reasonably practical means that which is or was at a particular time reasonably able to be done to ensure health and safety, taking into account and weighing up all the relevant matters.
The offences with which I am dealing today are offences punishable by a fine of 1.5 million when committed by a corporation. The maximum available in this case is therefore 4.5 million. The significant penalties which are available are indicative of the objective seriousness of the offences.
In sentencing for the offences under this Act I have had regard to the matters of section 9(2) of the Penalties and Sentences legislation. In addition to those, consideration assistance has been gained from the High Court in Wong v The Queen  207 CLR at page 611. Also in 2017 in Nash v Silver City Drilling (NSW) Pty Ltd. The New South Wales Court of Appeal considered the principles relevant to imposing sentences under the equivalent New South Wales legislation.
The defendant had pleaded guilty to a Category 2 offence. The sentencing judge commenced his considerations with the proposition that greater culpability attaches to the failure to guard against an event, the occurrence of which is probable, rather than an event the occurrence of which is extremely unlikely.
However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic; (b) the availability of steps to lessen, minimise or remove the risk; and (c) whether such steps are complex and burdensome, or only mildly inconvenient.
Of course, in this instance the potential consequences of the risk are and were catastrophic. Steps were available to lessen, minimise or remove the risk and steps were not that complex or burdensome and only mildly inconvenient and really were inexpensive.
I also consider the antecedents of the defendant. The defendant is registered as a public company listed by shares. It was registered on the 28th of April 2003 and it has no previous convictions. Given the post-incident measures taken by the defendant it cannot be said there is any material element of specific deterrence in the penalty to be imposed; however, I consider general deterrence is very important. Denunciation and punishment are paramount considerations.
The defendant operated the most iconic amusement park in the country. It targeted and attracted families. Those who were at risk from its failures were guests at the park, including those guests who tragically lost their lives. Complete and blind trust was placed in the defendant by every guest who rode the Thunder River Rapids Ride and those guests were extremely vulnerable.
The failures of the defendant resulted in a risk of both serious injury and death. Whilst the result of actual injury or death is not an element of the offences the defendant is to be sentenced for; however, that four unsuspecting members of the public lost their lives is highly relevant and compelling.
The impact statements spoke very loudly to the loss suffered by families of the victims and the lifelong impacts upon them. The failures of the defendant were not momentary. Nor were they confined to a discrete safety obligation. They encompassed failures in each of the following: the provision of maintenance of safe plant and structures. The provision of maintenance of safe systems of work. The provision of information, training and instruction to staff.
Whilst the defendant directed resources towards safety and implemented some control measures and improvements over time, its efforts were grossly below the standard that was rightly expected of it. A variety of control measures were available which would have minimised or eliminated the relevant risk. It was a company which had available to it resources to implement those control measures.
The pump failure was the catalyst for the sequence which ensued. It was only one of a number of contributing factors to the series of events which led to the fatalities. No particular failure should be considered more serious than others. Any of the control measures available were likely to have prevented such an incident in the event of a pump failure.
The defendant knew of the particular risk of rafts colliding and overturning and that such an event posed a risk of serious injury or death. The 2001 incident was known to Tan, who conveyed details of it to other employees. Tan did so to highlight the need to ensure procedures were followed; however, and at odds with the known risk, staff were not given clear direction as to the use of the E-Stop.
They were directed to use the main control panel in the first instance. In the first instance, where the means of communication between operators was ineffective, they should have been directed to use that control whenever they were in doubt as to the safety of the passengers thereupon. Instead, they were directed to use it as a last resort.
The defendant was aware of the risk of failure of the administrative controls, but continued to rely too heavily upon them, notwithstanding that in most of the previous investigations into the incidents on the ride the primary cause was attributed to operator error in failing to follow operation procedures.
The defendant continued to place considerable reliance upon the busy ride operators to identify, assess and respond to any potential safety issues, such as the pump failure, which arose during the course of the operation of the ride, in circumstances where those operators were necessarily focused upon their numerous other duties and were not provided with appropriate training, including emergency response training.
In some instances, reasonably practical control measures which could have reduced the risk were identified but not implemented, and the defendant failed to appreciate the increased risk in not doing so.
The investigation disclosed that the gap between the top of the conveyor and the support frame was sufficient for rafts to be drawn into it. That was the means of injury and the defendant was not cognisant that it could occur. It should have been detected, that risk, given its knowledge that rafts could overturn if there was an obstruction within the unload area.
That risk posed by the gap at the top of the conveyor, the myriad of control measures which were available, and the need to implement those controls could have been identified from effective and holistic risk assessment and from the implementation of a system which ensured such assessments were conducted at reasonable intervals, and no such system existed.
Risk assessments were not adequately conducted. The defendant was aware as early as March 2015 of the need to audit every ride against the Australian Standards 3533. It had commenced to do so, but it did not commit sufficient resources to the program to see an audit of the Thunder River Rapids Ride prior to the incident.
The other contributing factor to the delay was the failure of the defendant to appreciate the risks posed by the operation of the ride, which it incorrectly regarded as being one of the safest rides in the park.
To its credit, the detailed statement of fact prepared by prosecutions was not contested by Ardent and the defendant has accepted that the statement fairly represents the matters and circumstances then existing that gave rise to these charges.
Ardent has accepted the failings particularised in the complaints. Ardent has now demonstrated a thorough approach it has taken to learn from the past, which gave rise to this terrible tragedy. They immediately undertook a three-tier safety review and engineering review of all amusement devices and attractions across Dreamworld and WhiteWater World.
They developed a safety case embracing the government’s new major amusement park safety regulations. Ardent’s safety case outlines how they will manage safety in both Dreamworld and WhiteWater World parks to the highest standard. Also, safety assessment processes have been developed, which is a holistic assessment process for each assessment device and attraction, which has been endorsed by the regulator.
A new leadership team has been installed to drive its focus on continuously enhancing safety. The team comprises numerous experienced and well-regarded executives from theme park industry, with its engineering and safety teams led by professionals from Australian commercial aviation industry.
They have a safety governance framework, a safety management system, which is supported by a globally recognised IT system. A document managing system. A platform which enables the park to effectively and centrally track, manage and store documents from all departments, to ensure integrity and safety assessment processes. Also, the emergency procedures have been re-written. Its park-wide emergency management plan improved evacuation procedures are for each amusement device.
These plans and restructuring have demonstrated that Dreamworld has taken substantive steps to improving safety across the entire park in recent years since the dreadful and unspeakable incident on the 25th of October 2016.
It is upon a serious consideration of all of these facts and all of the evidence that I’ve concluded that this is a rare case in which a penalty close to the available maximum is appropriate. I have made allowances for the defendant’s early guilty plea, their clear demonstration of remorse and contrition, its unreserved apology, its significant post-incident remediation.
In all of those circumstances, the defendant is convicted and fined the sum of 3.6 million. Time to pay, Mr Hodgkinson. In default, levy in distress.
MR HODGKINSON: We’ll pay in accordance with the usual ‑ ‑ ‑
BENCH: One month.
MR HODGKINSON: ‑ ‑ ‑ legislative provisions. Yes, your Honour.
BENCH: Is that one month?
MR HODGKINSON: I’m sorry?
BENCH: Allowed time to pay.
MR HODGKINSON: If your Honour’s comfortable with a month, we would accept a month.
BENCH: Mr Guilfoyle.
MR GUILFOYLE: Nothing from the prosecution, your Honour.
BENCH: In all of the circumstances, convictions are recorded. Is there anything else, Mr Guilfoyle?
MR GUILFOYLE: There’s not. Thank you, your Honour.
BENCH: Anything else at all, Mr Hodgkinson?
MR HODGKINSON: No. Thank you, your Honour.
BENCH: Thank you.
- Published Case Name:
Guilfoyle v Ardent Leisure Ltd
- Shortened Case Name:
Guilfoyle v Ardent Leisure Ltd
 QMC 13
28 Sep 2020