Sunmanor Pty Ltd
Incident description:
On 29 July 2008, two customers participating in a white water kayaking activity were exposed to risk when their vessel capsized in an area identified as hazardous.
The court acknowledged Sunmanor Pty Ltd had a business or undertaking involving operation of white water kayaking for customers.
The court found the defendant held obligations under s.28 of the Workplace health and Safety Act 1995 being a person in control of a business or undertaking.
Investigation findings presented to the court alleged during the kayaking activity one of the kayaks under control of the river guides diverted from the designated route into a high risk area of rapids. The kayak was not able to be redirected, and capsized. The two occupants subsequently entered a section of the rapid assessed as a 'no go zone' and were exposed to the risk of death or serious injury.
The investigation findings presented to the court revealed:
- the kayaking activity was under-resourced in terms of the number of guides supplied to maintain the kayaks through a safe passage along the river and to perform a rescue of two customers simultaneously
- the two customers had little to no white water kayaking experience
- there was reliance on one of the customers to relay safety information and instructions in Greek to the other who did not understand English.
Court result:
The defendant pleaded guilty in the Cairns Industrial Magistrates Court on 18 November 2009 to breaching s.24(1) of the Workplace Health and Safety Act 1995, having failed to meet its workplace health and safety obligations and was sentenced with no conviction recorded.
Industrial Magistrate Mr Joe Pinder ordered the defendant pay a penalty of $2000 as well as investigation and court costs totalling $1565.40.
In reaching a decision he acknowledged the defendant failed to ensure the health and safety of its customers in terms of committing a technical breach.
In deciding the penalty imposed, Industrial Magistrate Pinder took into account the defendant had not been prosecuted previously for any workplace health and safety breach, cooperated with the investigation and entered an early plea of guilty.
The Department of Justice and Attorney-General appealed the amount of the fine. President Hall of the Industrial Court of Queensland allowed the appeal. In his decision of 17 June 2010 he set aside the original fine of $2000, and ordered the defendant pay a fine of $20 000.
Considerations for prevention:
(Commentary under this heading is not part of the Court's decision.)
When working in the white water rafting/kayaking industry where there is exposure to risks from entrapment, obligation holders should apply a risk management approach to ensure the selection of suitable control measures.
Risk management involves:
- evaluating the consequences and likelihood of harm that may result from the hazard
- deciding on and implementing control measures to prevent or minimise the level of the risk from the hazard
- monitoring the effectiveness of the control measures to ensure they remain working correctly.
Visit the Workplace Health and Safety Queensland website for more information on:
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Industry:
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Recreation
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ANZSIC code:
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6303 |
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Defendant:
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Sunmanor Pty Ltd
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Defendant ACN:
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061 191 517
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Date of offence:
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29 July 2008
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Location of offence:
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Russell River via Mirriwinni Qld
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Injury:
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-
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Circumstance of aggravation:
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Simpliciter
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Court:
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Cairns Industrial Magistrates Court
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Magistrate:
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Mr. Joe Pinder
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Legislation:
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s.28(1) Workplace Health and Safety Act 1995
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Plea:
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Guilty
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Decision date:
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18 November 2009
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Penalty:
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$20 000 (after appeal to Industrial Court)
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Maximum fine available:
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$187 500
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Investigation costs:
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$1500
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Professional and legal costs:
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–
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Court costs:
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$65.40
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In default period to pay:
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No period defined to pay, in default levy and distress
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Conviction recorded:
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No
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CIS event no.:
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82099
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