AusLeisure

The directors of a former Alice Springs based outback tourism company - Outback Ballooning - were today handed a combined penalty of $130,000 over the death of 35-year-old NSW tourist, Stephanie Bernoth on 13th July 2013.

Outback Ballooning directors Andrea and Jason Livingston were convicted and fined as the Alice Springs Local Court found the company's failure to comply with work health and safety duties resulted in the passenger's death. The directors pleaded guilty last month to a breach of section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (the Act).

The Livingstons purchased Outback Ballooning two weeks before Bernoth died. It has been reported that the company is no longer trading and was unable to meet its debts, but that the directors now operate another ballooning business through a separate company.

Bernoth died two days after being injured when the scarf she was wearing was sucked into an inflation fan while boarding the balloon near Alice Springs.

Bernoth and her husband were preparing for a balloon ride with eight other passengers. Despite receiving two safety briefings which 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 she was boarding, the scarf she was wearing was drawn into the fan, becoming entangled in the fan’s blades and driveshaft, causing fatal injuries.

NT WorkSafe charged Outback Ballooning the following year, which was challenged on the grounds that NT WorkSafe did not have jurisdiction to prosecute. This sparked a four-year legal battle and the matter was 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. NT WorkSafe has been firm from the beginning, and this case demonstrates its strong commitment to see through matters of importance on safety.

The Alice Springs Local Court imposed the following penalties:

• Outback Ballooning was 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 order to pay NT WorkSafe $10,000 to assist in the preparation, publication and distribution of written advice regarding precautions to be undertaken by tourists in Central Australia in respect to weather conditions.

The Northern Territory’s Work Health and Safety Regulator, Bill Esteves offered condolences on behalf of NT WorkSafe to Mr Bernoth and to Mrs Bernoth’s family in the Philippines.

Esteves advised “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.

“Entanglement in machinery can cause fatal injuries and businesses must ensure they are not complacent about safety and not to normalise accepting risks.”

Esteves said businesses must take a risk-based approach to continuously review their safe systems of work. This means reviewing hazards from incidents and near misses that have the potential to inflict serious and fatal injuries, including those in other like businesses.

Esteves added “Toolbox talks and safety briefings are necessary but not enough on their own to prevent incidents.

“Businesses must objectively assess risks if employees change or modify a procedure. In this case, 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.”

Business who are uncertain about their WHS obligations are encouraged to reach out to NT Worksafe’s Safety Assurance Team to obtain information 1800 019 115

Click here to access NT Worksafe information on 'Preventing contact or entanglement with machinery or plant with moving parts' 

Images: Outback Ballooning (top) and Stephanie Bernoth (below).

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