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Dreamworld Coroner finds leadership culpable

Dreamworld Coroner finds leadership culpable

On 25 October 2016, a tragic incident occurred on the Thunder River Rapids Ride (TRRR) at Dreamworld Theme Park, claiming four lives.

 

The 30-year-old TRRR ride was a water based family orientated ‘moderate thrill ride’ where patrons simulated white water rafting in a circular raft, suitable for patrons over the age of two, with the option of having children seated on an adult’s lap.

On that day Raft 5 became stranded on steel support rails situated at the end of the rides’ conveyor belt and it continued to travel where it collided with another raft before being lifted and pulled vertically into the conveyor mechanism. However, Kate Goodchild, Luke Dorsett, Cindy Low and Roozbeh Araghi were caught in the mechanism of the ride, and were either trapped in the raft or ejected into the water beneath the conveyor. Although ride operators and some patrons immediately responded, the four were declared deceased at the scene. Two children, aged 10 and 12, seated at the top of Raft 5 were able to free themselves and escape to safety.

Beginning 2018,  Coroner James McDougall ‘s inquest examined the circumstances that caused the fatalities, including:

  • The construction, maintenance, safety measures, staffing, history and modifications of the ride.
  • The sufficiency of the training provided to staff in operating the ride.
  • The regulatory environment and applicable standards by which amusement park rides operate in Queensland and Australia.
  • What further actions and safety measures could be introduced to prevent a similar future incident from occurring.

Coroner James McDougall handed down his findings on Feb 24 2020 telling the Queensland court that there was a “total” and “systemic failure by Dreamworld to ensure all aspects of safety” and referred parent company Ardent Leisure for possible prosecution.

The findings included:

  • That the design and construction of the TTTR ride “posed significant risk” to patrons.
  • “Dreamworld could, and should, have identified the safety issues” but there was no evidence of an engineering assessment on the TTTR ride in 30 years.
  • There were “frighteningly unsophisticated systems” in place, that “shoddy record-keeping was a significant contributor to this incident and contributed to the masking of the real risk of the ride” and that the likelihood of a serious accident “was simply a matter of time”.
  • The responsibilities placed on operational staff was stressful and “clearly unreasonable and excessive” which included monitoring of the pumps, CCTV, air pressure of the gates and queue lines. Operating the ride was “complex, confusing” and the ride lacked the “required labelling”, with ride operators having to perform more than a dozen tasks in the space of a single minute.
  • Each of the trained ride operators, noted that a requirement the role was to watch the water level, done by looking at an informal ‘scum’ mark around the trough of the ride, as well as the buoyancy of the rafts at the load and unload station, and whether they were sitting on the rails.
  • There was also evidence of “an inherent lack of proper training and process in place at Dreamworld to ensure the training provided to new Ride Operators and Instructors was suitable for the roles and responsibilities to be undertaken.”

Following the Dreamworld tragedy and the in the wake of the deaths of two workers at the Eagle Farm racecourse, Queensland introduced the charge of industrial manslaughter in 2017. Under those laws Ardent Leisure, Dreamworld’s parent company, would faces fines of up to $3 million, with individual executives facing up to $600,000 and five years’ jail.

However, this law does apply retrospectively and the industrial manslaughter provisions only apply to the deaths of workers, not visitors to a workplace.

Coroner McDougall said he “reasonably suspected” Ardent Leisure had committed an offence under the Work Health and Safety Act 2011 and advised he would be referring the company to the Queensland Office of Industrial Relations to consider prosecutions. In 2017 Queensland Police advised that no criminal charges would be laid against Dreamworld staff over the fatalities.

Coroner McDougall stated in his remarks that “such a culpable culture can exist only when leadership from the board (of Dreamworld’s parent company, Ardent Leisure) down are careless in respect of safety … that cannot be allowed.”

Download the complete Coroner’s report:

https://www.awu.net.au/wp-content/uploads/2020/02/10545784-final-dreamworld-draft-6-for-upload_compressed.pdf

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You can see our full program suite here >> or see some relevant units below:

Risk Assessment & Hazard Identification

This program helps you identify and describe the difference between a hazard and a risk, and introduces a way of thinking about hazard identification and risk management as an everyday activity. 

It will also enhance the skills and capabilities of leaders in the areas of hazard identification, risk analysis and identification and how to implement appropriate risk controls.

Download the course outline>>

Subcontractor Management

Learn to effectively manage WHS site risks and performance by learning how to effectively select, manage and monitor the complex and difficult world of subcontractors.  It also covers the WHS obligations regarding subcontractors, stepping through the various stages of effective subcontractor management, including assessing, evaluating safety history, attitude and managing expectations of performance and reporting.

Download the course outline >>

BSB41415 Certificate IV in WHS

The BSB41415 Certificate IV in Work Health and Safety is a nationally accredited program which will teach you how to identify hazards in the workplace, assist with responding to incidents, assess and control risk and consult on work health and safety issues. This program is most suited to those in a Safety Officer or Health and Safety Representatives role, or those currently in leadership roles wishing to shift their career into Health and Safety.

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Industrial manslaughter to become law in Victoria

Industrial manslaughter to become law in Victoria

Victoria has made Industrial Manslaughter a criminal offence and will now have the highest safety fine in the country with maximum penalties of $16.5m and 20 years jail.

Victoria is the third state after ACT and Queensland to legislate to make Workplace Manslaughter a criminal offence. The new laws will commence on a day to be proclaimed or 1 July 2020 at the latest, but those found negligent before the legislation commences may still be prosecuted if an organisations work policies cause a workplace fatality before the commencement date.

When will Workplace Manslaughter apply in Victoria?

Workplace Manslaughter applies when all of the elements of the offence are proven:

  • the accused is a body corporate or a person who is not an employee or volunteer
  • the accused owed the victim a duty of care pursuant to sections 21 to 24 or sections 26 to 31 of the OHS Act (this includes duties owed to employees, contractors and members of the public) (applicable duties)
  • the accused breached that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or serious illness
  • the act that breached the duty of care was committed consciously and voluntarily
  • the accused’s breach of the duty causes the victim’s death.

Workplace Manslaughter may apply even when the death of the person occurs sometime after the relevant incident. For example, depending on the circumstances, if an employee develops an asbestos-related disease after an employer exposed them to asbestos without the use of adequate personal protective equipment.

Who can be charged with Workplace Manslaughter?

A person, a body corporate, an unincorporated body or association or a partnership, including government entities and officers of these entities (but not employees or volunteers), who owe applicable duties to ensure the health and safety of another person in the workplace, can be charged with Workplace Manslaughter.

However, in certain circumstances, officers of organisations may be charged if their organisation owes applicable duties:

  • directors and secretaries of companies
  • partners of a partnership or joint venture
  • the trustee of a trust
  • persons who participate in the making of decisions that affect a substantial part of the organisations business
  • persons who have the capacity to affect significantly the organisations financial standing.

Negligent conduct

Voluntary and deliberate conduct is ‘negligent’ if it involves a great falling short of the standard of care that a reasonable person would have exercised in the circumstances and involves a high risk of death, serious injury or serious illness. It is a test that looks at what a reasonable person in the situation of the accused would have done in the circumstances. The test is based on existing common law principles in Victoria.

Negligent conduct can include a failure to act.

Examples of negligent conduct may include when a person:

  • does not adequately manage, control or supervise its employees
  • does not take reasonable action to fix a dangerous situation, in circumstances where failing to do so causes a high risk of death, serious injury or serious illness.

Causation: the conduct caused death

It must be established that it was the accused’s negligently criminal breach of the duty of care that caused the death. That is, his or her acts or omissions must have contributed significantly to the death, or been a substantial and operative cause of it. The acts or omissions must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death. This is the existing common law test of causation.

Penalties

If convicted of Workplace Manslaughter, the following maximum penalties apply:

  • A maximum of 20 years imprisonment for individuals
  • A maximum fine of $16.5 million for body corporates

Note – the new laws will commence on a day to be proclaimed or 1 July 2020 at the latest, negligent conduct before the legislation commences may still be relevant for the purposes of prosecution if an organisation’s omission to amend unsafe work policies causes a workplace fatality post-commencement.

SOURCE: https://www.worksafe.vic.gov.au/victorias-new-workplace-manslaughter-offences

Ready to train your people in risk management, hazard identification and subcontractor management?

We have a range of programs to train your people in risk management, hazard identification  and subcontractor management which can be tailored specifically to your industry and organisational needs. Training can be delivered as individual modules or as part of one of our accredited programs.

You can see our full program suite here >> or see some relevant units below:

Risk Assessment & Hazard Identification

This program helps you identify and describe the difference between a hazard and a risk, and introduces a way of thinking about hazard identification and risk management as an everyday activity. 

It will also enhance the skills and capabilities of leaders in the areas of hazard identification, risk analysis and identification and how to implement appropriate risk controls.

Download the course outline>>

Subcontractor Management

Learn to effectively manage WHS site risks and performance by learning how to effectively select, manage and monitor the complex and difficult world of subcontractors.  It also covers the WHS obligations regarding subcontractors, stepping through the various stages of effective subcontractor management, including assessing, evaluating safety history, attitude and managing expectations of performance and reporting.

Download the course outline >>

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The BSB41415 Certificate IV in Work Health and Safety is a nationally accredited program which will teach you how to identify hazards in the workplace, assist with responding to incidents, assess and control risk and consult on work health and safety issues. This program is most suited to those in a Safety Officer or Health and Safety Representatives role, or those currently in leadership roles wishing to shift their career into Health and Safety.

Read more about this program >>

Want to find out more about how we can customise our programs to your industry and organisation?
Let's talk!
Call us on 1300 453 555, email info@safetydimensions.com.au or use our contact form here.

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Subscribe Now! >>

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What Do Van Halen & Brown M&M’s Have To Do With Safety?

What Do Van Halen & Brown M&M’s Have To Do With Safety?

Van Halen’s Brown M&Ms – Their Key To Rock and Roll Safety

There’s a long tradition of musicians and actors adding in absurd demands in their performance contracts just because they could.

Van Halen, the American hair rock band of the 80’s were infamous for this inclusion in their contract, Article 126, “There will be no brown M&M’s in the backstage area, upon pain of forfeiture of the show, with full compensation.”

For years this clause was seen as a frivolous and ego-maniacal expression of the rock and roll lifestyle.

In his book, Crazy From the Heat, original front man David Lee Roth explains that the request was actually a quick safety assessment. With tonnes of stage equipment, high powered electronics, pyrotechnics and large crowds, the humble brown M&M was a warning signal to see if the stagehands had been paying attention to each detail of the written contract to ensure the safety of the band, crew and audience.

Watch the David Lee Roth speaking about the Van Halen Brown M&M clause:

Lee Roth writes:
“Van Halen was the first band to take huge productions into tertiary, third-level markets. We’d pull up with nine eighteen-wheeler trucks, full of gear, where the standard was three trucks, max. And there were many, many technical errors, whether it was the girders couldn’t support the weight, or the flooring would sink in, or the doors weren’t big enough to move the gear through. The contract rider read like a version of the Chinese Yellow Pages because there was so much equipment, and so many human beings to make it function.

mm1So just as a little test, in the technical aspect of the rider, it would say ‘Article 148: There will be fifteen amperage voltage sockets at twenty-foot spaces, evenly, providing nineteen amperes…’ And article number 126, in the middle of nowhere, was: ‘There will be no brown M&M’s in the backstage area, upon pain of forfeiture of the show, with full compensation.’

So I would walk backstage, if I saw brown M&M’s in that bowl…..well, line-check the entire production. Guaranteed you’re going to arrive at a technical error. They didn’t read the contract. Guaranteed you’d run into a problem. Sometimes it would threaten to just destroy the whole show. Something like, literally, life-threatening”

Dan and Chip Heath’s book, Decisive, How to make better decisions in life and work they summarise that “David Lee Roth was no diva; he was an operations master. In Van Halen’s world, a brown M&M was a tripwire.”

Image Credit: http://www.flickr.com/photos/clender/7239011350/

Ready to train your people in risk management, hazard identification and subcontractor management?

We have a range of programs to train your people in risk management, hazard identification  and subcontractor management which can be tailored specifically to your industry and organisational needs. Training can be delivered as individual modules or as part of one of our accredited programs.

You can see our full program suite here >> or see some relevant units below:

Risk Assessment & Hazard Identification

This program helps you identify and describe the difference between a hazard and a risk, and introduces a way of thinking about hazard identification and risk management as an everyday activity. 

It will also enhance the skills and capabilities of leaders in the areas of hazard identification, risk analysis and identification and how to implement appropriate risk controls.

Download the course outline>>

Subcontractor Management

Learn to effectively manage WHS site risks and performance by learning how to effectively select, manage and monitor the complex and difficult world of subcontractors.  It also covers the WHS obligations regarding subcontractors, stepping through the various stages of effective subcontractor management, including assessing, evaluating safety history, attitude and managing expectations of performance and reporting.

Download the course outline >>

BSB41415 Certificate IV in WHS

The BSB41415 Certificate IV in Work Health and Safety is a nationally accredited program which will teach you how to identify hazards in the workplace, assist with responding to incidents, assess and control risk and consult on work health and safety issues. This program is most suited to those in a Safety Officer or Health and Safety Representatives role, or those currently in leadership roles wishing to shift their career into Health and Safety.

Read more about this program >>

Want to find out more about how we can customise our programs to your industry and organisation?
Let's talk!
Call us on 1300 453 555, email info@safetydimensions.com.au or use our contact form here.

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Employers & Managers: New Industrial Manslaughter Law In QLD

Employers & Managers: New Industrial Manslaughter Law In QLD

Negligent Employers & Senior Executives Can Be Charged With Industrial Manslaughter- New Queensland Laws

In a media statement from the Queensland government, Industrial Relations Minister Grace Grace announced new industrial manslaughter laws passed the parliament, leaving negligent employers culpable in workplace deaths with nowhere to hide.

In response to the tragic fatalities at Dreamworld and an Eagle Farm work site in 2016, the Queensland government undertook a Best Practice Review of Workplace Health and Safety in Queensland. The creation of the new offence of industrial manslaughter was one of 58 recommendations contained in the report.  Industrial manslaughter allows the criminal prosecution of owners and employers for workplace deaths.

“Negligent employers culpable in workplace fatalities in Queensland will face severe penalties for the new offence of industrial manslaughter,” said Minister Grace.

“Individuals guilty of industrial manslaughter will face 20 years imprisonment, with corporate offenders liable for fines of up to $10 million. These penalties send out a strong message to all employers that negligence causing death won’t be tolerated under any circumstances.

“Because of increasingly elaborate corporate structures, up until now, it’s been difficult to prosecute some employers for manslaughter.

“But these new laws will hold all employers – regardless of their size or structure – accountable for negligence contributing to a worker’s death.

According to the review, worker representatives and plaintiff lawyers favour the creation of an offence of gross negligence causing death, while industry groups and other legal professional groups favoured retaining the status quo.

To date, the only Australian jurisdiction which had a specific industrial manslaughter type offence was the Australian Capital Territory.

“The legislation passed today is all about ensuring all Queensland workers can return home safely to their loved ones after a day’s work.”

Sources:

Queensland Government Media Release:
http://statements.qld.gov.au/Statement/2017/10/12/new-industrial-manslaughter-laws-to-protect-queenslanders-on-the-job

Best Practice Review Of Workplace Health and Safety:
https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0016/143521/best-practice-review-of-whsq-final-report.pdf

Safety Dimensions will update this page as more news comes to hand about what this means in practice for the QLD safety community.

Corporate Manslaughter: what is it and could it bring justice for Grenfell Tower victims?

Related posts: Queensland Industrial Manslaughter: New Laws


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Ioannis Glinavos, University of Westminster.

The disaster at Grenfell Tower has been described by David Lammy, Labour MP for Tottenham, as a case of “corporate manslaughter”. According to English law, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures, resulting in a gross breach of a duty of care.

Amid calls for arrests, it’s time to consider whether the failings that led to the Grenfell disaster could possibly justify the use of the label “corporate manslaughter” – and what this would mean for victims who seek justice.

Prosecutions for this offence are of a corporate body (defined broadly enough to include public authorities) and not individuals – so we probably won’t see any pictures of executives being led away in handcuffs. That said, directors, board members and others may still be liable to prosecution under health and safety law or general criminal law. The offence also covers contractors and sub-contractors, so long as they owe a duty of care to the victims.

A duty of care is an obligation, whereby an organisation must take reasonable steps to protect a person’s safety. Legally, it is broadly understood as avoiding negligence by not placing people in danger. These duties also exist in relation to workplaces and equipment, as well as to products or services supplied to customers. This suggests that when an entity exercises control over people and spaces it has a responsibility to protect them.

The corporate manslaughter offence uses the same definitions of duty of care as the common law offence of gross negligence manslaughter. This means that the threshold for the offence is high – the way that activities were managed or organised must have fallen seriously far below reasonable standards.

The consequences

Any organisation convicted of this offence would face a fine of anywhere between £180,000 and £20m (though there is no hard maximum limit). They would also be handed a publicity order, which requires them to publicise the conviction, along with certain details of the offence, as specified by the court. The court can also set a remedial order, requiring the organisation to address the cause of the fatal injury, which in this case could have consequences for similar tower blocks.

While there is no direct precedent for this kind of tragedy – involving massive loss of life for non-workers – to help us estimate penalties, some indications can be gleaned from the fines imposed on rail operators for train accidents. In 2003, Thames Trains and Network Rail were fined over £2m and £4m respectively, in relation to the health and safety breaches that led to the 1999 Ladbroke Grove train crash, which killed 31 people. And in 2006, Network Rail was fined £3.5m and Balfour Beatty an eventual £7.5m (following an appeal) for faults leading to the fatal derailment of a train near Hatfield in 2000.

It’s also possible for an organisation to be charged with both corporate manslaughter and health and safety offences in the same proceedings. In these circumstances, if an organisation is convicted of corporate manslaughter the jury may still be asked to return a verdict on the health and safety charges if the interests of justice so require, which can have further consequences for individuals.

Potential defendants

Corporate manslaughter is an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death. Even before knowing the full extent of the Grenfell disaster, it’s safe to say that it is likely to fall in this category.

Potential defendants in this case – should one eventually be brought – would probably include the building’s management company, the Royal Borough of Kensington and Chelsea Tenant Management Organisation (KCTMO), and possibly also contractors involved in the tower’s recent renovation.

But advocates for the victims are likely to be looking further than that, seeking to challenge the behaviour of public authorities and political decisions about spending on improvements to social housing in London. Prosecutions of public authorities would have far-reaching political consequences.

If the defendant is a public authority, exemptions may apply to decisions about public policy. For example, strategic funding decisions and other matters involving competing public interests, cannot be challenged in criminal proceedings. But decisions about how resources were managed are not exempt, which means that deliberate under-investment in maintaining safety could lead to prosecutions.

According to the law, the offence is concerned with how an organisation’s activities were managed or organised. So, courts will look at management systems and practices across the organisation in question, and investigate whether an adequate standard of care was applied. A substantial part of the failing must have occurred at a senior management level for a conviction to be successful.

Juries would be required to consider the extent to which an organisation was in breach of health and safety requirements, and assess how serious those failings were. They would also consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches. What’s more, it would not be necessary for the management failure to have been the sole cause of death, so a tenant’s actions in starting this fire would not exonerate those responsible for inadequate safety measures.

The ConversationFor now, London is in mourning. But when the immediate phase has passed, the law will turn its attention to those who may be responsible, and see that justice is carried out.

Ioannis Glinavos, Senior Lecturer in Law, University of Westminster

This article was originally published on The Conversation. Read the original article.

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