Million Dollar Mistakes: WHS Charges in Case of Leisure Deaths

7 August 2017

In two separate but equally unusual fatalities two Northern Territory organizations now face Work Health and Safety (“WHS“) fines of up to $1.5 million.

The first incident, which occurred in July 2013, involved a customer of Outback Ballooning Pty Ltd (“the company“) who sustained fatal injuries whilst boarding a hot-air balloon when her scarf was drawn into the balloon’s inflation fan.

After the fatality the Northern Territory’s WorkSafe (“WorkSafe“) issued an alert and charged the company with contravention of section 32 of the Northern Territory’s Work Health and Safety Act (“the WHS Act”). WorkSafe claimed that by failing to caution passengers of the severe risks associated with loose clothing and long hair and ensuring passengers did not board the balloon with loose clothing or loose long hair, the company had committed a category 2 offence.

The company went on to claim that the WHS charge was invalid on the basis that ballooning was covered by the Commonwealth statutory and regulatory regime for civil aviation, which included events that occurred on the ground. The company’s claim, which was upheld by a Magistrate at first instance, was successfully overturned by Justice Barr in April 2017.

Justice Barr accepted WorkSafe’s claim that the Commonwealth regime for civil aviation did not purport to regulate the safe use of plant and machinery, including plant and machinery around balloon take-off and landing sites. As a result WorkSafe is within its jurisdiction to charge the company under the WHS Act.

The second incident, which occurred in August 2015, resulted in the death of a 12-year-old boy at a school sports carnival. WorkSafe have charged Northern Territory Christian Schools Ltd with breaching section 32 of the WHS Act in failing to comply with its health and safety duties.

The Gawa Christian School student was run over by a car while he and other students used a rope to pull the vehicle in a tug-of-war game during a the school’s sports carnival on Elcho Island.

Like Outback Ballooning Pty Ltd, NT Christian Schools face a fine of up to $1.5 million