Ekka free to ban safety inspection company being prosecuted over Royal Adelaide Show ride death

A safety inspection company being prosecuted over the death of a child who was flung from a ride at the Royal Adelaide Show in 2014 can be banned from certifying rides at the Ekka, the Federal Court has ruled.

Queensland-based company Safe is Safe Pty Ltd, and its mechanical engineering Director Hamish Munro, are being prosecuted in the South Australian Industrial Court for allegedly breaching workplace safety laws.

The prosecution relates to the death of eight-year-old Adelene Leong, who was flung from the AirMaxx 360 ride at the show in September 2014.

The defendants are accused of breaching their health and safety duty by exposing patrons of the ride to the risk of death or serious injury, but have indicated they will contest the charges.

It is alleged the defendants failed to properly inspect the ride and its restraint harnesses before certifying it safe for use.

As a consequence the organisers of Brisbane's Ekka (the Queensland Royal Show), are refusing to accept inspection certificates from the company at next month's show.

The company and Munro sought an injunction against that decision in the Federal Court.

They alleged the Royal National Agricultural and Industrial Association of Queensland (RNA) had engaged in misleading and deceptive conduct and "improper exercises of market power".

The court heard the RNA was refusing to accept certificates from the company "as a result of its concerns about their competence, and consequential risks to the safety of persons using the rides at the Ekka".

Justice Jayne Jagot said that although the inference that the company was not competent to conduct the inspections could be false, it did not outweigh the RNA's safety duty to patrons.

Justice Jagot stated "there is at least some basis upon which it could be said, based on Mr Munro's qualifications and experience, that such an imputation or implication is false, irrespective of the status or otherwise of the charges in South Australia.

"The RNA has a legitimate interest in protecting the life and safety of all persons who attend the Ekka.

"It equally has a legitimate interest in protecting its business from the possibility of adverse publicity arising from Mr Munro or Safe is Safe Pty Ltd certifying rides at the Ekka, when it is not in dispute that Mr Munro certified the Airmaxx 360 in Adelaide and that the safety of that ride was compromised, causing the death of a child.

"It is also apparent that the RNA has a legitimate interest in protecting itself from the risk of liability arising from injury or death being sustained by patrons using the rides at the Ekka, as well as the reputational damage this risk would cause the RNA should it eventuate."

The Court heard that the Royal Adelaide Show had also decided not to accept any ride which had been certified by the company, but Mr Munro had decided not to take action against it.

Justice Jagot added “this fact is referred to in Mr Munro's evidence, where he said that he had been told by a client that the client had received a notice from the RAS advising that the show would not accept rides which he certified, the RAS being scheduled to take place in the month following the Ekka in September 2016.

"According to Mr Munro's affidavit, he had already made the decision to stop working in South Australia, and as a result he decided not to take any action against the RAS, in contrast to the action he has taken in respect of the RNA relating to the Ekka in Brisbane."

Justice Jagot said the risk of death or injury "overwhelmingly" prevailed over the company's commercial interests, concluding “on this basis we have, on the one hand, the prospect of serious financial impact upon the applicants and, on the other hand, the risks identified by the RNA. Weighing these matters up, I am satisfied that the balance of convenience is against the granting of any interlocutory relief.

"In weighing the financial wellbeing and livelihood of the applicants and the two or three persons in the applicants' employ against the risk of loss of life or serious personal injury to any other person, the latter interest overwhelmingly prevails."

The Ekka runs 7th to 16th August.

Images: The AirMaxx 360 ride (top) and Adelene Leong (below - courtesy of SA Police).

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