Due diligence and safety duty breaches by inflatable amusement company and its directors

Two company officers of a small business which ran pay for entry events on school holidays with inflatable rides held duties under s.27 and s.19 respectively of the Work Health and Safety Act 2011 (Act).  On 14 January 2020, the defendants pleaded guilty and were sentenced in the Holland Park Magistrates Court for breaching s.32 of the Act, having failed to meet their respective work health and safety duties.

In the September school holidays in 2017, the company had hired the use of the McGregor Netball Association Courts.  Approximately 17 inflatable amusement devices were installed at the Netball Courts.  The inflatables were secured with ropes and straps to various points in the netball courts including the fences, goal posts and wheelie bins filled with water at the direction of the company’s two directors.  One of the inflatables installed at the netball courts was the ‘Big Baller’.  The Big Baller was a large inflatable with a series of fixed inflated “balls” where the object or challenge was to jump from ball to ball. The Big Baller has a total of twenty-six anchor points for securing the inflatable to the surface where it is to be used.  On the date of the incident, only eight anchor points were utilised to secure the Big Baller and those points were not properly secured. 

On 29 September 2017, a nine-year-old boy was using the Big Baller.  What was described as a “whirly wind”, moved through the netball courts and hit the Big Baller causing it to move away from its position and become airborne.  It was lifted over one of the fences at the netball court.  The boy fell from the Big Baller to the ground outside of the netball courts, suffering fractures to his left femur and right humerus and other soft tissue injuries.  The injuries required surgery to repair and ongoing physiotherapy and occupational therapy support.

After the incident, the Big Baller was reinstated in its original position and re-inflated for use at the direction of the two directors.  It remained available for use until the arrival of WHSQ Inspectors.

Her Honour found that the action of the defendants in failing to properly secure all of the anchor points of the Big Baller was not in line with the manufacturer’s instructions or the company’s own manual.  There was poor training of staff and inadequate assessment of the weather conditions.  It was a significant and an aggravating factor that the ride was returned to service a short time after the incident.  Sudden gusts of wind were foreseeable and the risk could have been eliminated.

Her Honour considered that there was a need for general deterrence and less of a need for specific deterrence in this matter.  The defendants had taken significant post-incident measures and engaged an engineering company to certify the setup and use of inflatables on outdoor hard surfaces.

The defendants had a good standing in the community, significant financial obligations with limited financial means and no previous contraventions.  That needed to be balanced against the objective seriousness of the breach.

The Work Health and Safety Prosecutor, Aaron Guilfoyle, said the fine imposed reflected the seriousness of the breach by the company, which led to the serious injury of a child.  He said, “The prosecution of the company’s directors should serve to demonstrate that officers who fail to comply with their due diligence obligations under the Act risk criminal prosecution and conviction”.  Mr Guilfoyle commended the work of the investigators from the Office of Industrial Relations which led to the successful prosecution.

OWHSP contact: enquiries@owhsp.qld.gov.au

Court Report  
General  
Industry Amusement Rides
Date of offence Between 16 and 29 September 2017
Injury Leg fractures
Court Holland Park Magistrates Court
Magistrate A/Magistrate Turner
Decision date 14 January 2020
Company Officer 1  
Legislation Section 32, duty 27, Work Health and Safety Act 2011
Plea Guilty
Penalty $15,000.00 recognisance for two years
Maximum fine available $300,000.00
Professional and legal costs $500
Court costs $96.50
In default period to pay N/A
Conviction recorded No
Company Officer 2  
Legislation Section 32, duty 27, Work Health and Safety Act 2011
Plea Guilty
Penalty $15,000.00 recognisance for two years
Maximum fine available $300,000.00
Professional and legal costs $500
Court costs $96.50
In default period to pay N/A
Conviction recorded No
Company  
Legislation Section 32, duty 19(1), Work Health and Safety Act 2011
Plea Guilty
Penalty $50,000.00
Maximum fine available $1,500,000.00
Professional and legal costs $500
Court costs $96.50
In default period to pay 12 months
Conviction recorded No