Outback Ballooning Pty Ltd, an Alice Springs-based hot air balloon company, has been convicted and fined $130,000 after pleading guilty to breaching section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (the Act) over the death of a New South Wales tourist. On 13 July 2013, 35-year-old Stephanie Bernoth and her husband were preparing for a balloon ride with eight other passengers. Despite receiving two safety briefings that highlighted the inflation fan as a hazard with advice to stand clear, the passengers boarded the balloon’s basket from the side where the fan was located, requiring the passengers to walk past the fan. Bernoth was the second passenger to board the basket; as Bernoth was boarding, the scarf she was wearing was drawn into the fan and became entangled in the fan’s blades and driveshaft, causing fatal injuries.
NT WorkSafe charged Outback Ballooning the following year, but the charge was challenged on the grounds that NT WorkSafe did not have jurisdiction to prosecute. A four-year legal battle ensued, with the matter eventually appealed to the highest court in Australia. In February 2019 the High Court ruled in favour of NT WorkSafe, reverting the charge back to the Alice Springs Local Court to finalise. Outback Ballooning was thus convicted of breaching section 32 of the Act and the conviction was recorded. The company was fined $120,000 with an additional Victims Levy of $1000. The company was also ordered to pay NT WorkSafe $10,000 to assist in the preparation, publication and distribution of written advice about precautions to be undertaken by tourists in Central Australia, regarding weather conditions.
The Northern Territory’s Work Health and Safety (WHS) Regulator, Bill Esteves, noted that entanglement in machinery can cause fatal injuries, and called on businesses to ensure they are not complacent about safety. Esteves added that businesses must take a risk-based approach to continuously review their safe systems of work, by reviewing hazards from incidents and near-misses that have the potential to inflict serious and potential injuries, including those in other similar businesses. “This prolonged legal case has had a big impact on Mr Bernoth’s family and Mrs Bernoth’s family and we hope they find some closure. The main point is a young woman on holidays in the Northern Territory died because a business did not have appropriate systems to prevent injury from a well-known hazard in the workplace. Toolbox talks and safety briefings are necessary but not enough on their own to prevent incidents,” Esteves said.
Esteves urged businesses to objectively assess risks if employees change or modify a procedure. In this case, Esteves noted that the crew should have assessed the risk associated with repositioning the balloon’s fan due to a change in the direction of the wind. “On this occasion, the guard fitted to the fan did not stop Mrs Bernoth’s scarf being drawn into it. A risk assessment would have identified this and the crew would have implemented measures to keep passengers at a safe distance from the fan,” Esteves said.
Soutrce: NSCA Foundation
