District Court New South Wales Medium Neutral Citation: WorkCover Authority of NSW v OCS Fun Pty Ptd [2014] NSWDC 375 Hearing dates: 23 October 2014 Date of orders: 23 October 2014 Decision date: 23 October 2014 Jurisdiction: Criminal Before: Curtis, J Decision: The defendant is convicted and fined Catchwords: CRIMINAL LAW – prosecution – work health and safety – risk of death or serious injury – amusement ride fall – foreseeable risk that young children may not behave responsibly SENTENCE – fine – capacity to pay – no specific deterrence – general deterrence – appropriate penalty COSTS – prosecution costs Legislation Cited: Work Health and Safety Act 2011 Fines Act 1996 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) OCS Fun Pty Ltd (Defendant) Representation: Counsel: B Neild appeared for the Prosecutor P English appeared for the Defendant Solicitor: WorkCover Legal Group (Prosecutor) Phillip Blaxell Solicitor (Defendant) File Number(s): 2014/36020 Publication restriction: None SENTENCE 1. The defendant pleads guilty to the charge that on 3 November 2012 at Campbelltown in the State of New South Wales, it being a business with a health and safety duty under s 92 of the Work Health and Safety Act 2011 failed so far as was reasonably practicable, to protect a child, Annalise Mitchell, from the risk of death or serious injury. 2. The injury occurred when Ms Mitchell fell between two carriages on an amusement device known as the Love Express. This was known as a caterpillar ride, in which 20 connected carriages rise and fall a distance of between 25 cm and 3 metres on an undulating track. That risk could have been avoided had the void through which she fell been covered with a plate or netting. 3. There is no clear explanation as to how it is that Ms Mitchell fell. It may be that she misjudged the step from the walkway onto the carriage, or it may be that, as reported by some observers, she attempted to move from one carriage to another to join her friend. In any event, even if the circumstance was the latter, it is foreseeable that children of tender years do not always behave responsibly. 4. The defendant by its plea of guilty accepts that either circumstance should have been foreseen and measures taken to avert the risk. Nevertheless, the culpability insofar as the defendant departed from the standards of reasonable men is I think modest. 5. The defendant company has traded since 1991 and has no prior convictions. The sole director, Mr Gary Wayne O'Neil, has been involved in operating amusement rides for 40 years. He has been personally involved in that industry all of his life, having been compelled to leave university and take over the family business when his father died. 6. Mr O'Neil has always been keenly interested in safety. Shortly after taking over the business he travelled to America and Europe to learn of the safety and hazard procedures that were being used in those parts of the world. He travelled to fairs and amusement parks, reviewing safety measures and obtaining documents relevant to safe operating procedures and staff training. 7. He is a member of the International Association of Amusement Parks and Rides and sits on a panel for the Global Harmonisation of Safety Standards within the industry world-wide. He is a member of the committee responsible for the formulation of Australian Standard AS 3533, which is applicable to amusement rides. The committee advises industry and helps to alter that standard. 8. Mr O'Neil regularly consults with local and international amusement ride operators in relation to safety hazards. He travels regularly to conduct research and inspections, learning from safety incidents and accidents which have occurred in the industry. In 2008 he travelled to Sweden to inspect a particular machine known as a rainbow machine to enquire directly of the manufacturer as to the safety ramifications following a failure on such a machine. He also travelled to America to investigate a further incident concerning that machine. 9. The particular machine involved in this offence, the Love Express Ride, was purchased by the company in 1995. The purchase included the set up and operational manual and the company used that manual in order to set up and operate the machine. 10. The defendant in general implements a suite of safety and hazard identification and reduction measures in relation to all amusement rides which it operates. 11. An Operations Manager is employed by the defendant to check each ride each day for the safety of its operation. The defendant has a Plant Hazard Identification and Risk Assessment checklist. As part of its Safety and Risk Identification procedures the defendant arranged for the machine to be inspected independently by Mr Malcolm Patrick prior to operation at the Fisher's Ghost Festival where this accident occurred. 12. Mr Patrick certified that all the rides to be operated at the festival were inspected, assembled and operated in compliance with the relevant Australian Standard. 13. Before the incident Mr O'Neil was not aware of any accident throughout the world involving a fall through the void between the carriages of the Love Express. The machine is manufactured in Italy and is still manufactured with that void in place. Only in one place has netting been installed, and that was in Hong Kong. Mr O'Neil was not aware of this adaption in Hong Kong before the accident. 14. In the circumstances this incident is not the result of a want of industry and attention to matters of safety. It is a one-off event which occurred at the limits of imagination marking the boundaries of foreseeability. 15. The defendant had devised, instituted and maintained sound procedures to avoid accidents. Its subsequent conduct in, firstly, devising and installing plates to fill the void and then in removing the machine from operation altogether, indicate a responsible attitude. 16. Mr O'Neil has expressed contrition and remorse in relation to the injuries suffered by Ms Mitchell. Fortuitously those injuries were not very serious. Ms Mitchell suffered a mandibular fracture to her jaw and a three centimetre laceration to that damage. She suffered tooth damage, including loss of one deciduous tooth. 17. I have the victim impact statement from Ms Mitchell and I am conscious of the harm done to her and the psychological sequelae. She does not play many sports now because she finds them scary, and she sees a counsellor. 18. Although the gravity of the offence did include a risk of death or very serious injury, the incident happened when the machine was stationary. The degree to which the defendant departed from the standard of a reasonable man is slight given the circumstance that the accident arises from a want of imagination rather than a want of care. 19. I recognise that there is a need for general deterrence to be reflected in the penalty. I do not see that there is a need for specific deterrence given the record of this company and its response to the accident. The Fines Act directs the Court to a consideration of the capacity of the defendant to pay. I think in the present case an appropriate penalty is $80,000 before the reduction in consideration of the early plea of guilty, remorse and cooperation with the authorities. 20. The defendant is convicted and fined $60,000. 21. In addition to that sum the defendant is to pay the prosecutor's costs agreed in the sum of $12,500. 22. The total burden upon the defendant is then, in addition to its own costs, $72,500. This is 40% of the pre-tax operating profit of the company in the year ended June 2014. In that sense it consists of a pretty heavy penalty. 23. While this penalty is relatively high compared to similar cases to which I have been referred it is significant that the legislature has seen fit to increase the maximum penalty to $1.5 million. 24. The defendant is to pay the prosecutor a moiety of the fine. ********** Amendments 19 March 2018 - Added Work Health and Safety Act 2011 to the Cover Sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2018