CHILD’S FALL COSTS COUNCIL $125,000

Overview

A four-year-old child’s serious fall at a local aquatic centre (Centre) resulted in her suffering skull and vertebrae fractures, and the responsible local government authority being subject to a fine of $125,000.

This month’s Safety Moment reminds directors that:

  • they have a legal duty to implement and monitor systems to ensure safe conditions in their workplaces as far as reasonably practicable for both workers and others; and
  • failure to adopt proactive risk management steps can result in tragic and life-altering consequences for those affected, especially if the victim is a young child.

What happened?

  • On 3 January 2021, a family comprised of two parents and three children aged 6, 4 and 1 visited the Centre. The Centre was owned and operated by a local government authority.
  • At the time of the incident, patrons could pay an extra fee and be issued a wristband which allowed them access to a diving tower. The family paid for ‘general entry’ access to the pool.  The family did not pay an additional amount to use the diving tower.
  • The two older children wanted to jump from the diving tower. A lifeguard was controlling the jumping.  The father walked his children to the 3-metre diving platform and spoke with the lifeguard, who informed him that his children were fine to jump.
  • The father returned to the pool deck to watch the children jump.
  • The 4-year-old successfully jumped from the diving tower twice. However, when she was waiting to take her third jump, she fell through the guardrail onto the concrete below.  The child suffered skull and vertebrae fractures as a result of the fall.
  • Following the child’s injury, the Centre closed the diving tower and implemented the following:
    • a lifeguard manual
    • a complex risk assessment of the tower for dive club usage
    • permanent edge protection (vertical bars) for the diving tower.
  • The Southport Magistrates Court found the local government authority guilty of breaching section 32 of the Work Health and Safety Act 2011 (WHS Act). That is, a failure to comply with hits primary health and safety duty which exposed an individual to a risk of death or serious injury.

What went wrong?

  • An investigation conducted following the child’s injury identified that a risk assessment had been conducted of the Centre. However:
    • no specific risk assessment had been undertaken in relation to the use of the diving tower by patrons, including young children
    • the edge protection was not sufficient to remove the risk of a patron falling from the diving tower
    • there was insufficient supervision of patrons waiting on the stairs and platform
    • wristbands were not routinely checked, meaning that the diving tower could be assessed by those who had not purchased admission.

Implications for directors

Directors are reminded that:

  • risk assessments should be specific rather than general, and should be completed periodically and whenever there is a change in the work environment
  • independent audits can bring objectivity and identify hazards that may be overlooked by other workers
  • directors themselves should conduct a walk-through audit from time to time, to ensure that they understand the operations and that risk management processes have been implemented to the extent reasonably practicable
  • the duty of care applies to workers and others, and is not transferable. For Queensland PCBUs, the Young Workers Code of Practice 2006 applies to any children at the workplace (whether they be workers or visitors).  

Education reminder

18  What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a)  the likelihood of the hazard or the risk concerned occurring; and

(b)  the degree of harm that might result from the hazard or the risk; and

(c)  what the person concerned knows, or ought reasonably to know, about—

(i)  the hazard or the risk; and

(ii)  ways of eliminating or minimising the risk; and

(d)  the availability and suitability of ways to eliminate or minimise the risk; and

(e)  after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

 

27  Duty of officers

(5)   In this section, due diligence includes taking reasonable steps—

(a)   to acquire and keep up-to-date knowledge of work health and safety matters; and

(b)   to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and

(c)   to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d)   to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e)   to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

Example—

For paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

  • reporting notifiable incidents
  • consulting with workers
  • ensuring compliance with notices issued under this Act
  • ensuring the provision of training and instruction to workers about work health and safety
  • ensuring that health and safety representatives receive their entitlements to training.

(f)   to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).

 

Where to from here?

We provide training to boards, officers and workers as to their duties under the WHS Act.  If you would like further information, or to arrange a training session contact EmploySafe Legal.

The information contained in this Safety Moment is intended as a guide only.  You should seek professional advice before applying any of the information to particular circumstances.  Whilst reasonable care has been taken in the preparation of this update, EmploySafe Legal does not accept liability for any errors it may contain.

 

Kate Simpson Managing Director – Employment & Safety Lawyer +61 420 972 497 kate.simpson@employsafelegal.com.au

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