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Leading tourism industry lawyer Anthony J Cordato has explained why Gold Coast theme park Dreamworld failed in its duty of care to keep guests on its Thunder River Rapids ride safe during last October’s tragic incident that claimed the lives of four people.

Making a presentation to students at the UTS Business School - at the invitation of Dr David Beirman, Senior Lecturer - Tourism Management Discipline Group - last Wednesday, Cordato delivered a paper entitled ‘What can the Dreamworld tragedy teach us about the legal duty of care for the safety of visitors in a theme park?’

Cordato’s synopsis was based on where the legal duty of care for the safety of visitors to be found. He advised that it is found in two places:

The guarantee of due care and skill which is in the Australian Consumer Law. The guarantee is inserted by law into every contract for the supply of services. It covers services provided by everyone in the tourism industry, from theme parks to hotels and resorts to tour operators to airlines and transport providers.

The duty of care to avoid negligence which is in the Civil Liability Law. The duty is to take precautions against a risk of harm which is foreseeable and is significant. The precautions are those that a reasonable person would take to keep the public safe.

Why did Dreamworld fail in its legal duty of care for safety?

Cordato advised that no definitive reasons have yet emerged, stating “ these will be explored by the Queensland Coroner at a Coroner’s inquest which is expected to take place early next year.

“So the possible reasons I set out below are pure speculation, and are by no means comprehensive.”

Reason 1 - The riders were not adequately restrained against being thrown from the raft. All four riders who were killed were thrown from the raft. The restraints in the raft were a lap sash seatbelt and a bar to hold. There should have been a double shoulder harness, as in roller coaster rides.

Reason 2 - The conveyor belt which was lifting the raft had been unsafely modified. The conveyor belt lifted the rafts at the end of the ride to the start of the ride loop. The accident occurred because the raft in front had got stuck at the top, and when the fatal raft hit it, it flipped. Two riders fell through the slats and drowned (the other two were crushed on the slats). They fell through because every second slat had been removed - the reason was that when a wooden slat broke, it was not replaced. Instead, the remaining slats were evenly redistributed.

Reason 3 - Where was the person with the ‘stop ride’ button? The normal practice is that attendants are stationed in line of sight positions along rides in theme parks. They have the ability to stop a ride if they see something wrong. It is not known if an attendant was watching the conveyor belt on this ride. If they were, why did they not stop the ride?

Reason 4 - There was no separator to prevent rafts from colliding with each other on the conveyor belt. It is normal for rafts/cars to be kept separate with a separator.

Cordato summarised that the reasons are either due to defects in the equipment or in the supervision.

What is Dreamworld’s liability for compensation claims?

Cordato explained “Dreamworld, the same as every theme park/recreational activity operator, enters into a contract with every visitor who enters. The conditions of contract are found in the entry pass, and the visitor is legally bound by them.

“The conditions include disclaimers of liability.

“The disclaimers of liability for injury and death are found under the ‘Responsibility’ heading. The Dreamworld ‘Responsibility’ disclaimer states: 'The Company will not be liable to any person in respect of loss of life or personal injury'.

“It is perfectly legal for theme park operators to exclude civil liability for negligence by using a disclaimer. But there are limits. If the loss of life or injury is caused by recklessness, then the Civil Liability Law and the Australian Consumer Law will override the disclaimer and the theme park / recreational activity operator will be held liable.”

What is recklessness? It is the situation where the operator is aware or should have been aware there was a significant risk of personal injury in the way the activity was being operated, but failed to take adequate precautions.

There is every possibility that Dreamworld will be found to have operated the Thunder River Rapids ride recklessly, and so be liable despite the disclaimer in their entry pass.

The many consequences of the Dreamworld tragedy:

Personal - Four adults died, two children were thrown clear. The families of the deceased adults were traumatised, as were the children who were thrown clear.

Criminal - The coroner may recommend criminal negligence charges be laid against the attendants supervising the ride, the operations manager, and possibly the ride maintenance staff.

Civil - Compensation payments to next of kin for trauma following a death are limited, but compensation for loss of future earnings can be relatively large. The civil law suits will use much of the evidence uncovered in the coroner’s inquest.

Workplace Health and Safety - Staff may claim compensation for trauma.

Financial - The Dreamworld theme park was closed for 45 days, resulting in a financial loss for its owner Ardent Leisure, including a 44.5% drop in earnings to 30th June 2017.

Reputational - Gold Coast theme park attendances as a whole declined 8.4% in the summer of 2016/17. Dreamworld attendances suffered a greater decline. Dreamworld estimates recovery is likely to take two years.

Cordato concluded that “theme park rides occur in a repetitive, controlled environment. There should be zero deaths.” 

Anthony J. Cordato is a leading Australian Property and Tourism Lawyer. 

At Cordato Partners, he acts on advisory and transactional legal work, including town planning and also does court work. He can be contacted on email: ajc@tourismlegal.com.au 

Image show the conveyor belt on Dreamworld's Thunder River Rapids ride prior to last October's fatalities.

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