Economics and Industry Standing Committee Inquiry into the 2011 Kimberley Ultramarathon Report No. 13 Legislative Assembly August 2012 Parliament of Western Australia Committee Members Chair Mr M.D. Nahan, MLA Member for Riverton Deputy Chair Mr W.J. Johnston, MLA Member for Cannington Members Ms A.R. Mitchell, MLA Member for Kingsley Mr I.C. Blayney, MLA Member for Geraldton Mr M.P. Murray, MLA Member for Collie-Preston Co-opted Member Hon. M.H. Roberts, MLA Member for Midland Committee Staff Principal Research Officer Mr Tim Hughes, BA (Hons) Ms Renée Gould, BA GradDipA (from 16 April 2012) Research Officer Mrs Kristy Bryden, BA, BCom Legislative Assembly Tel: (08) 9222 7494 Parliament House Fax: (08) 9222 7804 Harvest Terrace Email: [email protected] PERTH WA 6000 Website: www.parliament.wa.gov.au/eisc Published by the Parliament of Western Australia, Perth. August 2012. ISBN: 978-1-921865-53-4 (Series: Western Australia. Parliament. Legislative Assembly. Committees. Economics and Industry Standing Committee. Report 13) 328.365 Economics and Industry Standing Committee Inquiry into the 2011 Kimberley Ultramarathon Report No. 13 Presented by Dr M.D. Nahan, MLA Laid on the Table of the Legislative Assembly on 16 August 2012 Contents Executive Summary i Ministerial Response xi Findings and Recommendations xiii Relevant Persons xxv 1 Introduction 1 The 2011 Kimberley Ultramarathon 1 2 RacingthePlanet Events Limited 7 Part One: Risk identification and assessment 7 Risk of fire in the course area 7 RacingThePlanet’s awareness of fires in the course area 12 Communication and Consultation 15 WA Health (including Kununurra District Hospital and St John Ambulance) 18 Shire of Wyndham East Kimberley (SWEK) 23 Department of Environment and Conservation 25 Fire and Emergency Services Authority 27 Western Australia Police 28 Relevant landowners/occupiers ‐ El Questro Wilderness Park, the Salerno family, Ivanhoe Station and Doon Doon pastoral lease 30 El Questro and the Salerno family 30 Doon Doon and Ivanhoe Station 34 Kimberley residents including John and Ann Storey and local volunteers 34 Risks identified in RacingThePlanet’s risk management plan 36 RacingThePlanet’s risk identification process 39 Part Two: Reducing risks 42 Communication and consultation with relevant authorities and experts, before and/or during the event 47 Optimal communications equipment for the environment and nature of the event 47 Adequate medical support and evacuation procedures 53 Part Three: Maintain the safety of competitors, employees, contractors, spectators and volunteers 64 Fire incident related events: 8:30am to 12:45pm 68 Fire incident related events: 11:40am to 2:00pm 83 Fire incident related events: 2:00pm to 2:45pm 92 Fire incident related events: 2:45pm to 5:00pm 97 Fire incident related events: 4:50pm to 5:30pm 105 Cancellation of the race and evacuation of uninjured competitors 107 3 Terms and Conditions of Event Organisers 117 Comparing events and event organisers 117 Safety of competitors 118 Competitor Vetting 119 Conclusions on Competitor Vetting 122 Mandatory Equipment Requirements 124 Maps and Course Notes 125 Competitor Communications 127 Essential Medical Items 130 Rules surrounding race control 132 Emergency Medical Treatment 137 Interests of competitors 140 Waivers 140 Access to legal claims 147 4 Terms and Conditions of Associated Sponsorship Agreement 153 Sponsorship Agreement with Tourism WA 153 Tourism WA ‐ Background 153 “Responsible Sponsorship” Case Study: Sponsorship Agreement with RacingThePlanet Events Limited 156 Background to Sponsorship Agreement 156 Principles of Responsible Sponsorship: No. 1 – Risk Management Plan 157 Principles of Responsible Sponsorship: No. 2 – Event Insurance 164 Principles of Responsible Sponsorship: No. 3 – Due Diligence 170 5 The Civil Liability Act 2002 181 Scope of chapter 181 Causes of Action Available 182 Negligence (Duty of Care) 183 Modifications to Duty of Care under the Civil Liability Act 2002 (Western Australia) 185 No liability for harm from obvious risk of dangerous recreational activities 185 No liability for recreational activity where risk warning given 187 Waiver of contractual duty of care for recreational activities 189 Quantum of Damages 191 6 Role and actions of government departments 193 Introduction: The current legislative framework 193 Emergency Management Act 2005 (WA) and the Local Emergency Management Committee (LEMC) 193 Local Emergency Management Committee (LEMC) 194 Health Act 1911 (WA) 195 Fire and Emergency Services Authority of Western Australia (FESA) 197 Roles and Actions 197 Race day 199 Post‐race 207 Fire investigation 207 Cause of Fire 211 Fire investigation meeting with RacingThePlanet 4 September 2011 213 Local Emergency Management Committee meeting 214 Positive aspects of FESA’s performance 215 Other aspects of FESA’s performance 215 Negative aspects of FESA’s performance 216 FESA Comcen 000 Calls 219 Western Australian Police 223 Roles and Actions 223 Race Day 224 Post Race 227 Positive aspects of WA Police’s performance 227 Other aspects of WA Police’s performance 228 Negative aspects of WA Police’s performance 229 Shire of Wyndham East Kimberley 230 Roles and Actions 230 Race Day 234 Post‐race: 235 Positive aspects of SWEK’s performance 236 Shortcomings of SWEK’s performance 237 Kununurra Visitors Centre 239 Positive aspects of KVC’s performance 241 Western Australian Department of Health 242 Roles and Actions 242 Race Day 247 Positive aspects of DoH performance 248 Negative aspects of DoH performance 248 Department of Environment and Conservation 250 Roles and actions 250 Post Race 251 Positive aspects of DEC’s performance 252 Department of Regional Development and Lands 252 DRDL’s role in Regional Events Program funding 252 DRDL’s role in approving activities undertaken on Crown land 253 Negative aspects of DRDL’s performance 255 7 Concluding thoughts 259 Future measures 259 Local Emergency Management Committees 260 Health Act 1911 (WA) ‐ “eligible” event approval processes 262 Land use approvals (DRDL and DEC) 265 8 Compensation 269 9 Jurisdiction of the Coroner to investigate bushfires 271 Coroner’s inquest was a distinct possibility 271 Is a Parliamentary Committee an appropriate body to conduct an investigation of this nature? 272 Committee’s view 274 Appendices 275 1 Satellite Imagery 275 2 Terms of Reference 287 3 Submissions received 289 4 Hearings 291 5 Functions and Powers 294 Executive Summary n Friday, 2 September 2011, a 100km ultramarathon was conducted in the Kimberley Region across a predominantly off‐road course starting from the OEmma Gorge airstrip at El Questro and finishing in the town of Kununurra. This event was known as the 2011 Kimberley Ultramarathon. The 2011 Kimberley Ultramarathon was organised by Hong Kong‐based RacingThePlanet Events Limited (RacingThePlanet), a company that has staged more than 33 footraces in eight countries over the preceding ten years. This was the second event that RacingThePlanet had staged in the Kimberley. In late April 2010, RacingThePlanet organised and held a 250km seven day event in the same area. The 2011 Kimberley Ultramarathon attracted a sponsorship commitment from Eventscorp, the Western Australian government’s events agency and an operating division within Tourism WA, for an amount of up to $105,000 with an option for a further two years. During the event, at least 13 competitors were directly confronted by a large bushfire. Five (Miss Turia Pitt, Miss Kate Sanderson, Mr Martin Van Der Merwe, Mr Michael Hull and Ms Mary Gadams) were unable to escape the flames and suffered burns of varying severity. The injuries suffered by Miss Pitt and Miss Sanderson were life‐threatening and have resulted in permanent scarring, disfigurement and disability that will have a significant impact on the rest of their lives. On 1 March 2012, the Legislative Assembly directed the Economics and Industry Standing Committee to investigate and report to the House on the 2011 Kimberley Ultramarathon. The House directed that the Inquiry include six areas of investigation. The terms of reference can be found in Appendix Two. The Committee does not make findings of legal liability in this Report. That is a role for an appropriate Court. However, the Committee was asked to examine the actions of the organiser, and the roles and actions of a range of government agencies in respect of the event. The Committee was asked to consider whether RacingThePlanet took all reasonable steps to identify and reduce risks and maintain the safety of competitors, employees, contractors, spectators and volunteers in the preparation for and running of the event and in responding to the fire and the injuries; including access to medical support and evacuations. i In a series of omnibus findings, the Committee has found that RacingThePlanet did not take all reasonable steps to identify risks associated with the 2011 Kimberley Ultramarathon (Finding 2). Nor did RacingThePlanet take all reasonable steps to reduce risks to the safety of competitors, employees, contractors, spectators, and volunteers (Finding 3). Finally, the Committee also found a series of factors which demonstrate that RacingThePlanet did not take all reasonable steps to maintain the safety of these parties (Findings 4‐7). The Committee is of the view that RacingThePlanet, in its approach to planning for the 2011 Kimberley Ultramarathon, did not involve people with appropriate knowledge in identifying risk. The level of communication and consultation with