Magistrate Webster of the Magistrates Court of Tasmania has acquitted a sole trader charged under the Work Health and Safety Act 2012 (Tas) (the WHS Act) following the 2021 Hillcrest Primary School tragedy in which six children died and others were seriously injured while using a jumping castle during a school event.
The inflatable was sourced from an overseas manufacturer (described by the operator during the trial as a “bunch of crooks”) which completely failed to provide adequate safety information and the correct number of pegs to anchor the jumping castle.
While the Court did not find that an offence had taken place in the context of this incident, the decision is an apt reminder that a failure to ensure effective safety management in a supply chain can have fatal consequences.
In our consideration of this decision and the legal standard applied by the Court, we recognise that the incident was and remains a profound tragedy with devastating consequences for the families of the children and the local community.
Incident
Rosemary Gamble (Ms Gamble) was the sole trader and operator of Taz-Zorb, which supplied and operated inflatable amusement devices. On 16 December 2021, Taz-Zorb supplied a jumping castle, Zorb balls, and a Zorb ball arena for the end-of-year celebration at Hillcrest Primary School. Two volunteers also attended to assist with the set-up, operation and supervision of the inflatable devices.
At around 10am, a sudden and intense wind event lifted the jumping castle and zorb balls into the air, which landed heavily on the ground. Some of the children fell from the jumping castle while it was airborne. The blower attached to the jumping castle also lifted into the air and struck a student in the head.
As a result of the incident, six children tragically lost their lives and several other children were seriously injured.
Charges
Ms Gamble was charged with an offence pursuant to ss 19(2) and 32 of the WHS Act. That is, Ms Gamble was charged with failing, so far as was reasonably practicable, to ensure that the health and safety of other persons was not put at risk from work carried out as part of her business or undertaking and by that failure, exposing persons to a risk of death or serious injury. The charge specifically related to Ms Gamble’s alleged breach of duty concerning the anchorage system of the jumping castle and not the zorb balls (despite three children sustaining injuries which arose from their use).
The charge alleged that Ms Gamble had failed to ensure the provision and maintenance of safe systems of work (contrary to s 19(3)(c) of the WHS Act), in that Ms Gamble had failed to ensure the anchorage system was sufficient to prevent lift of the inflatable device by:
- failing to ensure that a peg was installed at each anchorage point in accordance with the manufacturer’s instructions;
- failing to ensure that each face of the jumping castle was secured by installing pegs at all anchorage points;
- failing to use the type of pegs recommended by the manufacturer or a suitable alternative as recommended by a competent person;
- failing to engage a competent person to recommend an alternative anchorage system (and implement that recommendation) when deviating from manufacturer guidance to install pegs at each of the anchorage points;
- failing to engage a competent person to recommend a suitable alternative anchorage system (and implement that recommendation) when deviating from manufacturer guidance to install the manufacturer’s pegs (we note that it is unclear how this particular differs from the particular above);
- failing to use a continuous wind monitoring anemometer; and
- failing to apply previously identified risk controls, including the use of star pickets.
By reason of the same particulars set out above, the charge also alleged that Ms Gamble had failed to ensure the safe use, handling and storage of plant, structures and substances (contrary to section 19(3)(d) of the WHS Act).
Finally, the charge also alleged that Ms Gamble had, contrary to s 19(3)(f) of the WHS Act, failed to ensure the provision of any information, training, instruction or supervision that is necessary to protect persons from risk to their health and safety by:
- failing to provide workers with information, including the manufacturer’s operating manual for the jumping castle;
- failing to provide the workers with training and instruction in accordance with the manufacturer’s operating manual, including the requirement to use each of the anchorage points;
- failing to provide the workers with training and instruction in accordance with the manufacturer’s operating manual for the jumping castle, including the requirement to use the manufacturer’s pegs; and
- failing to provide workers with adequate supervision during the set up of the jumping castle.
As reflected above, these were a significant set of particulars (noting that the above list is the final set of particulars which the prosecution proceeded with at trial – the initial charges alleged even more failures). The prosecution contended that these failings exposed others to the risk of serious injury or death arising from falls from height and/or being struck by the inflatable device or any part attached, due to the inflatable device becoming dislodged from the anchorage points and becoming airborne.
The maximum fine for the alleged offence was $300,000 as Ms Gamble is an individual conducting a business or undertaking. Had the charged entity been a company, the maximum fine available would have been $1,500,000. No term of imprisonment could be imposed in relation to this offence.
The supply chain
As ventilated at trial, WorkSafe Tasmania’s investigation uncovered a series of concerning practices by East Inflatables Manufacturing Co Ltd (East Inflatables) in relation to Ms Gamble’s 2015 purchase of an E2-030 jumping castle for USD$2,500.00.
These included misrepresentations on East Inflatables’ website stating that their inflatable products were designed to comply with Australian Standards, specifically AS 3533.4.1 (Amusement rides and devices – Specific requirements: Land-borne inflatable devices).1 East Inflatables also directly advised Ms Gamble by email that its “products are produced according to Australian standards” and are “certified by the most strict European standards.” Ms Gamble was also under the impression that the East Inflatables warehouse was located in NSW, however, it was later discovered that the jumping castle was shipped from China. East Inflatables also encouraged Ms Gamble to deceive Australian Customs (which she refused) by issuing a false invoice for the jumping castle.
Critically, a key issue was that East Inflatables provided Ms Gamble with only four pegs (rather than the eight required) and no safety manual or operating instructions. Ms Gamble was required to download a two-page manual (which was considered wholly inadequate against the requirements of the Australian Standard) from East Inflatables’ website. A 13-page operating manual subsequently became available on the website in March 2022 and only after East Inflatables received a statutory notice from WorkSafe Tasmania requesting its production.
Expert evidence
Expert evidence played a central role in this matter. Particularly pivotal was the evidence of the sole meteorological expert, Dr Nicholas Earl-Jones (Dr Earl-Jones), who was called by the prosecution. Dr Earl-Jones was “absolutely certain” that the phenomenon was a dust devil.2 While certain conditions may be conducive to dust devil formation, Dr Earl-Jones was adamant that “it is essentially impossible to predict such an event with any degree of accuracy” and that “predicting the formation of a dust devil of the magnitude observed at a specific location in a climate like Tasmania would be impossible”.3
Dr Earl-Jones further stated that an anemometer (a device used to measure wind, the use of which was alleged by the particulars to be a reasonably practicable measure) would not have provided any meaningful warning, as such equipment would have recorded only light southerly winds before the dust devil’s arrival and would likely have been pulled into the vortex if not secured. He concluded the anemometer would have been “useless in the circumstances”.4
In respect of expert engineering evidence, the prosecution called Mr Roderick McDonald (Mr McDonald) and the defence called Professor David Eager (Professor Eager). The evidence of both experts was considered in detail by the Court in assessing causation. Central to this inquiry was the cause of the anchorage failure. The prosecution contended that the failure occurred in the manner described by Mr McDonald, who was of the view that the Incident was caused by insufficient anchoring. Mr McDonald concluded that, had eight pegs been used, the jumping castle would not have become airborne, as the additional anchoring would have deflected the wind upward rather than allowing it to lift the structure from underneath. However, Professor Eager, having considered the opinion of Dr Earl-Jones, concluded that the failure of the anchorage was caused by a “significant upward force of the dust devil,” an unpredictable and localised weather event.5
Judgment
On consideration of the evidence, the Court found that a number of the measures alleged to be reasonably practicable by the prosecution were not so. The measures which referenced a ‘competent person’ were not found to be applicable as the Court held that the requirements under the Australian Standard which referred to a competent person related to matters of design rather than operation. Additionally, as noted above, the Court found that as the operating manual for the jumping castle had not been provided to Ms Gamble, she could not have provided workers with information, instruction and training on the same.
In contrast, the Court found that ensuring the jumping castle was anchored using eight pegs, and on all faces, was in fact reasonably practicable and a step which Ms Gamble had failed to carry out. Likewise, the Court stated that it was reasonably practicable to use a weather anemometer to monitor weather conditions (rather than a weather app, as this could not be accurate nor responsive in relation to local changing conditions). However, neither of these failings were considered to be causally linked to an exposure of any person to death or serious injury, given the nature of the dust devil.
As His Honour summarised: “Ms Gamble could have done more or taken further steps however given the effects of the unforeseen and unforeseeable dust devil, had she done so, that would sadly have made no difference to the ultimate outcome.”6
Additionally, and for completeness, the Court considered it was reasonably practicable to provide workers with adequate supervision during set up of the inflatable – which it found that Ms Gamble had carried out and therefore, was not a failure.
Accordingly, the charge was not proved beyond a reasonable doubt and was dismissed by the Court.
Key takeaways
While the incident which occurred was unique and the acquittal was ultimately based on the occurrence of an extreme weather phenomenon which could not have been foreseen, there are still many learnings which businesses should reflect on in relation to ensuring safety in the supply chain.
A failure to effectively manage safety in the supply chain can lead to a devastating outcome. We recommend that businesses keep the following in mind:
- When sourcing plant, businesses should ensure that they conduct thorough due diligence on suppliers and avoid partnering with any organisations which appear to lack transparency or show any other red flags, as these can be indicators of serious safety concerns.
- While manufacturers and suppliers should be proactive in the provision of satisfactory safety information, such as operating manuals, results of risk assessments and testing, and certification, businesses need to ensure that they are equally conscious of requesting, obtaining and critically reviewing this information.
- Businesses may want to take particular care if plant is being manufactured or imported from jurisdictions where safety standards are not as stringent.
Source: Hamilton Locke Australia
