Ardent Leisure Limited operated the Dreamworld Theme Park on the Gold Coast. On 25 October 2020, four guests on the Thunder River Rapids Ride at the park were fatally injured.
On 28 September 2020, the defendant pleaded guilty and was sentenced in the Southport Magistrates Court in relation to three charges pursuant to s32 of the Work Health and Safety Act 2011 (the Act), each concerning a failure to comply with its primary safety duty under s19(2) of the the Act. The defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant and structures, the provision and maintenance of safe systems of work, and the provision of training, instruction and supervision necessary to protect all persons against risks to their health and safety arising from work carried out as part of its business, and exposed persons to a risk of serious injury or death.
The defendant was convicted and fined $3.6M. The conviction was recorded.
On the ride, large six-seat rafts floated around a circular water channel propelled by the current created by two large water pumps. At the end of the channel, a conveyor transported the rafts back towards the highest point of the ride where the rafts were loaded and unloaded.
At approximately 2:03pm on 25 October 2016, one of the ride’s pumps failed. This led to a drop in the ride’s water level and caused a raft to become stranded on a metal support frame at the top of the conveyor.
Following the pump failure, the other ride components continued to operate. A second raft containing four adults and two children was transported along the still operational conveyor towards the stranded raft. At the top of the conveyor, the rafts collided twice, before contact between the base of the rafts with the surrounding ride components caused the rafts to lifted at the point of contact. The second raft became vertically inverted and was drawn down into the gap between the end of the conveyor and the support frame. The inversion and shaking of the raft, caused by the moving conveyor, resulted in the four adults guests becoming drawn into the moving components of the conveyor. The two children on the raft escaped without physical injury.
The WHSQ investigation found that the operation of the ride relied primarily on administrative controls. These controls required ride operators to identify, assess and respond to any potential safety issues arising during ride operation, where those operators were also focused on numerous other duties and were not provided with appropriate training, including emergency response training. These administrative controls remained despite investigations into previous incidents on the ride that attributed the primary cause to operator error in failing to follow operation procedures.
There was no emergency stop button for the conveyor on the main operator control panel, with only a slow stop function available. The defendant was aware, from audit recommendations made as early as 2003, of the need to install a single emergency stop at the main control panel. An emergency stop button was located at the unload area of the ride, which would have effected a near instantaneous stop of the conveyor, but staff were not given clear direction as to its use and were directed to use it as a last resort.
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 defendant could have implemented various engineering control measures which would have prevented an incident in the event of a pump failure, none of which were cost prohibitive. This included a water level sensor to automatically shut down the conveyor where the water level dropped, which could have been implemented for an estimated cost less than $3,000. The defendant did not have a system in place for effective risk assessments, which could have identified the risk posed by the gap at the top of the conveyor, the control measures available and the need to implement those controls. The defendant recognised the need to audit rides against Australian Standard 3533 from as early as March 2015, but did not commit sufficient resources to see an audit of this ride prior to the incident.
In sentencing the defendant, Magistrate Pamela Dowse had regard to the purpose of the Work Health and Safety Act 2011 and to the maximum penalty of $1.5 million for each charge, which was observed to be indicative of the objective seriousness of this type of offence. Her Honour had regard to the principles contained in s9(2) of the Penalties and Sentences Act 1992 and to the considerations outlined in Nash v Silver City Drilling (NSW)  NSWCCA 96. Her Honour determined that, in this case, the potential consequences of the risk were catastrophic, steps were available to remove the risk, and those steps were not complex or burdensome but, rather, only mildly inconvenient and inexpensive.
Her Honour considered that paramount considerations in this case were denunciation and punishment, with general deterrence remaining important. It was accepted there was no need for any material element of specific deterrence in the circumstances. Magistrate Dowse observed that the guests on the ride were extremely vulnerable as they placed complete and blind trust in the defendant, with the death of four unsuspecting members of the public being a highly relevant and compelling consideration. Her Honour had regard to the victim impact statements, which spoke to the loss suffered by the families of the victims.
Her Honour accepted the submission that the failures of the defendant were not momentary or confined to a discrete safety obligation and observed that, while the defendant had implemented some control measures over time, its efforts were grossly below the standard expected of it. Moreover, various control measures were available to the defendant which would have eliminated the risk and which the defendant had the resources to implement. The defendant was aware of the risk of failure of the administrative controls, but continued to rely too heavily upon them.
Her Honour had regard to the company’s antecedents, including its lack of previous convictions and the extensive post-incident measures taken by the defendant, as outlined by counsel for the defendant. It was accepted that these measures demonstrated the defendant had taken substantive steps to learn from the past and improve safety at Dreamworld since the incident.
Magistrate Dowse determined that the matter was a rare case in which a penalty close to the maximum was appropriate. Her Honour made allowances for the defendant’s early guilty plea, its clear demonstration of remorse and contrition, its unreserved apology and its extensive post-incident remediation.
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Section 32, duty 19(2), Work Health and Safety Act 2011