key takeaways
In 2019 a man died and his wife was seriously injured when a zipline failed at a eco adventure park at Cape Tribulation Far North Qld.
Lawyers from McInnes Wilson in Brisbane were engaged by the operators’ insurers to travel to the site to provide advice to the young employees at the park for interviews by Work Health and Safety investigators. Many of these employees had assisted in the design, construction and maintenance of the ziplines at the park. Most of them had themselves traversed the subject zip lines several times a day for over a year before the accident.
The business operator was suspended pending conclusion of investigations and was already insolvent before a prosecution could be brought against it. The McInnes Wilson clients were all shaken by the circumstances of this tragic accident and had to find alternative employment. The prosecution proceeded against the company operator and against a former managing director alleging various breaches of due diligence in failing to engage engineers to design the manner in which the ziplines were affixed to the platforms, failing to engage an advanced rigger to instal the ziplines, failing to require regular tightening or adequately consult with WHSQ about how the ziplines should be affixed. The prosecution alleged these breaches exposed users to the risk of death or serious injury.
In the prosecution against the director, the court found that the director had taken reasonable steps to comply with her duties. The prosecution had not proved what it was the director should have done differently to avoid the alleged exposure. The director had been actively involved in overseeing the system of safety together with a competent operations manager responsible for operational management of WHS matters. The only evidence from engineers was to the effect that the use by the operator of wire rope grips was widespread and justified if certain precautions were taken. There was no evidence that the wire grips weren’t properly affixed or that engineers would have necessarily recommended any other method of affixing the ziplines.
The prosecution of the insolvent operator was dropped.
By complying with only their legal obligations to provide interviews, not volunteering unnecessary information or speculation and by otherwise assisting the prosecution and defence, all of the clients of McInnes Wilson, including the former operations manager, avoided being personally prosecuted for breach of the onerous Safety obligations on all workers under the Work Health and safety legislation.
how can mcw help?
For further information or advice regarding commercial insurance or Work Heath and Safety contact McInnes Wilson principals Mylton Burns | mburns@mcw.com.au or James Christensen | jchristensen@mcw.com.au.
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