|Defendant||Michael William Laughton|
|Section||55(1) & 55(1)(b)|
|Offence Date||14 August 2011|
|Description of Breach(es)||
Charge 1 - Being the director of a body corporate guilty of an offence under sections 21(2) and 21A(3) of the Occupational Safety and Health Act 1984, where that offence occurred with the consent of the director, or was attributable to any neglect on the part of the director.
Charge 2 - Being the director of a body corporate guilty of an offence under regulation 4.52(1)(a) of the Occupational Safety and Health Regulations 1996, where that offence occurred with the consent of the director, or was attributable to any neglect on the part of the director.
The Company's operations
Australian Racecare Pty Ltd (ACN 108 059 481) (Company) was a corporation that, trading as Wanneroo Kart Hire, operated an on-site go-kart hire business from leased premises located at 1 Wattle Avenue East, Neerabup (Wanneroo Kart Hire). The Company had purchased the business and the go-karts used there in approximately 2004. The Company no longer operates Wanneroo Kart Hire.
The Wanneroo Kart Hire premises comprised:
On 14 August 2011, the following persons were working for the Company at Wanneroo Kart Hire
At all material times, Mr LAUGHTON was the sole director and secretary of the Company, and managed the Company's business at Wanneroo Kart Hire.
On 14 August 2011 Mr Laughton's partner was helping out at the reception and kiosk of Wanneroo Kart Hire due to the Company being understaffed on that day. She was not an employee of the Company, and did not receive pay for this work.
The 14-year-old employee was Mr Laughton's partner's son. He had been employed casually for the Company as a track attendant / general hand since approximately early 2010.
The 15-year-old employee had also been employed casually for the Company as a track attendant / general hand since April 2011.
14 August 2011
On 14 August 2011, a 13-year-old girl arrived at Wanneroo Kart Hire with her friend and her friend's parents to ride the go-karts. They purchased two rides of 20 minutes each.
The girl's friend and her father had brought their own helmets. The 13-year-old girl chose a helmet from those provided by the Company.
The 13-year-old girl had long hair that hung down to the bottom of her back. Although the Company provided hairnets that it intended to be used to restrain long hair, the 13-year-old girl's hairnet did not hold her hair within her helmet. The hairnets were for designed for kitchen hygienic purposes.
The girl's friend also had long hair. She was wearing a hooded jumper.
No employee of the Company mentioned the girl's friend's hooded jumper or the girls' long hair at this stage.
The girl's friend and her friend's mother tucked the 13-year-old girl's hair into her jumper. The friend's mother also had her daughter tuck her hair into her hooded jumper.
The 13-year-old, her friend and her friend's father then put their helmets on, entered the pit area and got in their designated go-karts.
The 15-year-old employee warned them as to how to operate the go-karts on the track and pull-started the go-karts at the engines, which are at the rear of the karts. He made no mention as to the friend's hooded jumper or the girls' long hair. At that point, the two girls had their hair tucked into their jumpers.
The 13-year-old, her friend and her friend's father drove around the track for 20 minutes. The two girls still had their hair tucked into their jumpers during this time.
After 20 minutes, their allotted time was up, which was signalled with a chequered flag by the 15-year-old employee. They returned to the pit area and alighted from the karts with the help of the 14-year-old employee. The 13-year-old girl's hair was still tucked into her jumper at this time.
They then bought and ate lunch at the kiosk. They removed their helmets and hairnets and kept them with them during lunch. The two girls also untucked their hair from their jumpers.
The 13-year-old, her friend and her friend's father put their helmets and (in the 13-year-old girl's case) hairnet back on and returned to the track for their second ride, and got into their designated go-karts without any comment as to hair or loose clothing, or any further instructions from any employee of the Company. The 14-year-old employee started the go-karts at the engines at the rear of the karts.
At this time, the 13-year-old girl's hair was still hanging out of her hairnet and down her back, between her jumper and the seat back, perhaps explaining why the 14-year-old employee did not notice it when she was seated in the pits.
After a few laps, the 13-year-old girl suddenly felt her hair being pulled sharply backwards. Her hair had come out from between her jumper and the chair and had been tangled around the rear axle of her go-kart, which had pulled her backwards over the seat, with her back arched over. Her helmet was against the brakes on the rear axle.
The chin-strap of her helmet was cutting into her neck and preventing her from breathing.
She lost consciousness. Her hair was cut to free it from the axle and she ultimately started breathing again. She regained consciousness in the ambulance that was called.
The 13-year-old girl has not been diagnosed as presently suffering from any sequelae of the incident.
As at 14 August 2011 there were a number of warning signs within and outside Wanneroo Kart Hire. There was a large general warning at the front gate and a warning by the helmet rack that long hair was required to be tied up inside helmets while on the track.
Subsequent to 14 August 2011, Mr LAUGHTON arranged for more signs to be put up at various locations within Wanneroo Kart Hire that specifically warned about loose clothing and the need for long hair to be tied up inside a hair net.
Training, instruction & supervision
Upon purchasing the business in approximately 2004, Mr LAUGHTON received written procedures stipulating that patrons were not allowed in the go-karts with long hair or loose clothing, and were required to wear long sleeves and long pants in the go-karts.
As at 14 August 2011, the 15-year-old employee had not seen or been trained in these procedures. Subsequent to 14 August 2011, Mr LAUGHTON instructed the 15-year-old employee, and re-emphasised to the 14-year-old employee, to ensure, for safety reasons, that patrons were not allowed in the go-karts with long hair or loose clothing, and were required to wear long sleeves and long pants in the go-karts.
The rear axles of the go-karts at Wanneroo Kart Hire were not guarded as at 14 August 2011; nor did they have headrests.
Subsequent to 14 August 2011, the Company commenced trialling guarding between the seats and ends of the go-karts, which prevented loose clothing or long hair from coming into contact with the rear axle.
This guarding cost a few thousand dollars.
As at 14 August 2011, guarding of rear axles was available for approximately $100 per kart, and was used by other go-kart businesses in Western Australia.
In March 2003 there was an incident at the premises subsequently taken over by the Company, in which a young girl was ‘scalped' when her hair was caught in the rear axle of a go-kart. The go-kart was of the same design as those purchased by the Company when it took over the business and in use as at 14 August 2011.
Mr LAUGHTON was aware of this incident.
Prior to 14 August 2011 there have been other recent instances in Australia of patrons being killed or injured by loose clothing being tangled in the inadequately guarded rear axle of go-karts.
Australian Standard 3533
In 2004, soon after the Company purchased the Wanneroo Kart Hire business, WorkSafe WA directed Mr LAUGHTON to relevant parts of AS3533.1-1997 - Amusement rides and devices - Design and construction and AS3533.2-1997 - Amusement rides and devices - Operation and maintenance (compliance with which is required by 4.52(1) of the Occupational Safety and Health Regulations 1996 (WA)).
As at 14 August 2011, the go-karts at Wanneroo Kart Hire were not operated and maintained in accordance with AS 3533, in that:
As at 14 August 2011, it was reasonably practicable for the Company to have:
Taking any or all of these measures would have eliminated or significantly reduced the risk of the 13-year-old girl's hair being entangled in the rear axle of her go-kart on 14 August 2011.
The Accused entered a guilty plea and was convicted on 16 July 2014. The Magistrate sentenced the accused on 20 August 2014 and issued a global fine of $9,250.00. Costs were ordered on the company.
|Conviction Date||16 Jul 2014|
|Court||Magistrates Court of Western Australia - Joondalup|
|Charge Number||JO5021/14 & JO5022/14|