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[2006] NSWIRComm 167
Industrial Relations Commission (NSW)
2006-05-17
Boland J, Ms P
Original judgment source is linked above.
CITATION: Inspector Kilpatrick v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2006] NSWIRComm 167
PROSECUTOR Inspector Peter Kilpatrick PARTIES: DEFENDANT The Crown in the Right of the State of New South Wales (Department of Education and Training)
CATCHWORDS: Occupational Health and Safety - Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - Education industry - Workplace death - Teacher's Aide drowned whilst supervising intellectually disabled students on school excursions - Importance of risk assessments - Victim impact Statements - Guilty finding - Penalty imposed
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000
Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (2000) 102 IR 84 Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383
PROSECUTOR Ms P E McDonald of counsel Solicitor: Ms A Devasia WorkCover Authority LEGAL REPRESENTATIVES:
DEFENDANT Mr M L Shume of counsel Solicitor: Mr G McCann Sparke Helmore
INSPECTOR PETER KILPATRICK v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)
Prosecution under s 8(1) of the Occupational Health and Safety Act 2000
1 Helen Taylor was employed by the Department of Education and Training as a Teacher's Aide Special at the Newcastle School (Special), a school that catered for secondary students with moderate to severe intellectual disabilities. Ms Taylor was assigned to Class 3 and her role was to support the class teacher, Stephen McDonald, by assisting with class work, administering medication, assisting with students' personal hygiene, implementing individual educational programs, performing administrative work and assisting on excursions. Ms Taylor, 56, had been with the school since 1980. 2 On 15 October 2002, Class 3 went on one of its weekly excursions. The destination was Lemon Tree Passage in the Port Stephens area where the students were to have a barbecue and go swimming in the Inlet Pool, a fenced off tidal river pool measuring about 36 metres by 44.5 metres, adjacent to the barbecue area. The students were accompanied by Ms Taylor and Mr McDonald. One of the students was 14-year-old LC (I will only refer to the students by their initials because I have made a non-disclosure order in relation to the students' names). 3 Upon arrival, the students were split up with two assisting Mr McDonald with the barbecue and the remaining five going with Ms Taylor into the pool. Mr McDonald found it necessary to go to a shop across the road to obtain some change to operate the barbecue. In the meantime, LC started walking into the water towards the deeper side of the pool, which was over two metres deep. Ms Taylor called out and motioned to him to return. She walked out to where LC was and he grabbed her and pulled Ms Taylor down under the water. Ms Taylor disappeared under the water for a couple of seconds before she surfaced. LC pulled her down under the water again. When she re-surfaced she managed to break free from LC's grip and took hold of his arm and began leading him towards the shore. Both returned to the water's edge. 4 Mr McDonald returned to find Ms Taylor lying in shallow water in a stricken state. She was having difficulty in keeping her head out of the water and there was blood coming from her forehead, nose and mouth. An ambulance was called and Ms Taylor was transferred to hospital. Over the next two weeks Ms Taylor's condition deteriorated and on 29 October 2002 she died. An autopsy report found that the cause of death was Adult Respiratory Distress Syndrome (ARDS) caused by near drowning. 5 Arising out of the incident that occurred on 15 October 2002, Inspector Peter Kilpatrick of the WorkCover Authority of New South Wales charged the defendant with an offence under s 8(1) of the Occupational Health and Safety Act 2000. The section provides: 8 Duties of employers (1) Employees
An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 6 Subject to contesting one of the particulars, the defendant pleaded guilty to a charge in a further amended application for order that alleged that on 15 October 2002 at Lemon Tree Passage Inlet Pool the defendant failed: [T]o ensure the health, safety and welfare at work of its employees and in particular Helen Taylor contrary to section 8(1) of the Occupational Health and Safety Act 2000. Particulars of the charge:-
These Guidelines were available to all schools prior to 15 October 2002. However no formal training was provided to schools when this document was released, although principals of schools were requested to make teachers aware of the document and its contents.
As at 15 October 2002 Christine Urane, the principal of the Newcastle School was not aware of these Guidelines and only became aware of them after Helen Taylor's death.
Stephen McDonald was also not aware of the Guidelines at the time of the incident on 15 October 2002. He only became aware subsequently when Christine Urane addressed staff on the Guidelines and procedures.
The Guidelines provided inter alia for supervision by a minimum of two adult supervisors, who possessed appropriate expertise and or training in the teaching or instruction of swimming and who must be present at all times.
The Guidelines provided that when swimming at inland waterways at least one supervisor must possess a current Royal Life Saving Society of Australia ("RLSSA") bronze medallion or a Surf Life Saving Australia ("SLSA") bronze medallion or SLSA surf Rescue certificate.
Neither Christine Urane nor Stephen McDonald knew of the requirement that at least one supervisor possesses a current RLSSA bronze medallion or an SLSA bronze medallion or an SLSA surf Rescue certificate.
Christine Urane was unaware of Helen Taylor's competency as a swimmer and she was unaware of Stephen McDonald's competency as a swimmer. Stephen McDonald did not know what formal qualifications Helen Taylor possessed in swimming.
The Guidelines provided that there must occur a reasonable assessment of the student's swimming ability to be made as close to the commencement of the activity as is possible.
The students from Class 3 taken on the excursion had not been adequately assessed on their swimming abilities.
The Guidelines specifically refer to students with disabilities stating that supervision requirements will vary and need to be assessed accordingly.
Although the defendant knew that [LC] had a history of violent and aggressive behaviour until March 2002, adequate supervision was not provided.
No adequate risk assessment which took into account the swimming abilities of the students and any history of violent and aggressive behaviour of the students was undertaken. 17 Other evidence tendered by the prosecutor was as follows: (1) Twelve colour photographs of the incident site and its immediate surroundings. (2) A two-page statement by Inspector Kilpatrick dated 6 April 2006 to which were attached sketches showing the incident scene and certain measurements of distance. (3) A factual inspection report into the incident prepared by Inspector Kilpatrick and dated 23 June 2003. (4) A record of the defendant's prior convictions as they related to the Department of Education and Training. (5) The copy of a notice under s 62 of the Act issued on 6 November 2003 to the defendant to obtain information, documents and evidence and copies of documentation provided in response. (6) A school counsellor report on LC dated 20 October 2000. (7) Two statements made by Mr McDonald to Inspector Kilpatrick dated 9 April 2003, 26 August 2003 and a statement made by Mr McDonald to police on 2 December 2002. (8) The Victim Impact Statement of Anne Louise Hobden, daughter of Ms Taylor. (9) The Victim Impact Statement of Janine Curtis, daughter of Ms Taylor. (10) Statement to Police of Robyn Lorraine Sharman dated 30 November 2002. (11) Extracts from a "Communications Book" recording communications between mainly Mr McDonald and LC's parent or parents between about November 2001 and October 2002 regarding, inter alia , LC's behaviour and progress. (Tendered later was the original Communications Book). 18 For the defendant an extensive affidavit of Marnie O'Brien, the defendant's Director of Occupational Health and Safety, was tendered into evidence. As well, the defendant tendered an affidavit of Mr McDonald sworn on 10 April 2006 and an affidavit of Robyn Sharman sworn on 21 November 2005. None of the deponents were required for cross-examination, although the prosecutor called Mr McDonald to give additional evidence orally. 19 Ms Marnie's affidavit went to the following matters: (1) Ms Marnie's personal background. Her duties include responsibility for the development and implementation of strategic directions, policies, plans and processes in occupational, health and safety, injury prevention, injury management, workers compensation and rehabilitation for the Department. (2) The Newcastle School (Special) and its role and function. (3) LC's attendance at the School. Ms Marnie deposed that: There were no major incidents concerning [LC's] behaviour in 2002 prior to the incident. Overall [LC] was settled during that period. He had gone on sailing excursions and was involved in the gardening program at the school that year and behaved well. Ms Taylor knew him well. He related well to Ms Taylor and Mr McDonald and both related well to him. (4) The excursion on 15 October 2002 including the nature of the activities and a description of the location and the Pool. (5) The physical description of Ms Taylor. Ms Marnie stated: Ms Taylor was 56 years old, 5'9" tall and weighed approximately 78kg. In August 2002 Ms Taylor had a viral infection of the lungs followed by a flu-like episode. A chest x-ray prior to the excursion identified the presence of a mild to moderate posterobasal bilateral interstitial fibrosis. Annexed hereto ... is a copy of the report provided by Dr Kevin Patrick Lee dated 29 October 2002. Neither the Newcastle School nor the Department were notified that Ms Taylor had been diagnosed with posterobasal bilateral interstitial fibrosis. (6) The cause of Ms Taylor's death. In this respect Ms Marnie deposed: Dr Lee found that Ms Taylor suffered Adult Respiratory Distress Syndrome ("ARDS") caused by near drowning. ARDS is a serious condition and one that is liable to be rendered worse by the presence of underlying lung disease, such as intracerebral haemorrhage idiopathic pulmonary fibrosis. ... Ms Taylor's idiopathic pulmonary fibrosis was a significant contributing condition in that it set the stage for Ms Taylor's progress after the Incident. A person with normal lungs would be expected to have a greater reserve of lung function. ... (7) The defendant's Guidelines for the Safe Conduct of Sport and Physical Activity at School issued in October 1999.
(8) The process for preparing to go on an excursion.
(9) Risk assessments performed by Mr McDonald. In this respect Ms Marnie deposed: Teachers were expected, consistent with policy, to conduct a risk assessment before taking students out of the Newcastle School.
On 15 October 2002 Mr McDonald did conduct a risk assessment in relation to the excursion which consisted of the following actions: (i) before leaving for the excursion Mr McDonald checked the mood of the class and found that the students were settled;
(ii) there was nothing to indicate during the trip to the Pool that the students' behaviour had changed; and
(iii) on arriving at the Pool, Mr McDonald visually assessed the conditions and noted that the water was flat and calm, that the Pool was fenced off and there were no dangers from members of the public. Based on these considerations Mr McDonald made the assessment that it was safe to continue with the planned excursion.
Prior to Ms Taylor taking the students swimming Mr McDonald again viewed the water and determined that the water was shallow that the students were settled and therefore that it was suitable to allow the students to go swimming.
Also factored into Mr McDonald's considerations was his general understanding of the nature and behaviour of the students in his class that he had developed during the preceding 3 terms of 2002. (10) The supervision of Ms Taylor at the Pool. In this respect it was deposed: During the excursion Mr McDonald continually supervised the group that was swimming. In particular he: 1 when Ms Taylor and the students first went swimming Mr McDonald: (a) walked down to the water and checked to see that everything was alright; (b) asked Ms Taylor "how's everything" to which she replied that "everything's OK" or words to that effect; and (c) checked to see each of the 7 students; 2 after returning to the barbeque, looked up every now and then and kept an eye on the group that was swimming while cooking the barbeque; and 3 conducted a further visual check immediately before he went to the shops across the road to get change. At this stage everything remained fine. (11) Occupational health and safety and welfare policies, procedures and programs existing at the time of the incident. (12) Qualifications, training and experience of employees. Mr Marnie stated: Ms Taylor had been working as a TAS since 1975. Ms Taylor had a current first aid certificate from St John's Ambulance at the time of the Incident and was the Newcastle School's first aid officer. Ms Taylor was an extremely experienced TAS. She had been a TAS at the Newcastle School for 22 years leading up to the Incident. Training was provided to all staff at the Newcastle School, including Ms Taylor during 2002 at staff development days on the following topics: (i) Code of conduct; (ii) Medications policy; (iii) Child protection; (iv) Risk assessment and risk management; (v) Computer skills; (vi) CPR; (vii) Mental health; and (viii) Grief and loss. (13) The incident response. (14) Post incident actions. Ms Marnie described the extensive steps taken by the defendant, including awareness training on the Guidelines for the Safe Conduct of Sport and Physical Activities in Schools. (15) Improvements to safety. This included updated school excursions policy which included the requirement to undertake a formal risk assessment; the introduction of a Safety Management System entitled "Safe Working and Learning" ("the System") in conjunction with a three-year Occupational Health and Safety Strategy ("the Strategy"); particular improvements to safety at the Newcastle School. (16) The defendant's cooperation with WorkCover in its investigation of the incident;
(17) An expression of contrition at the death of Ms Taylor and the breach of the Occupational Health and Safety Act .
Consideration 20 The nature of the risk in this case was said by the prosecutor to be the risk of drowning or near drowning; a serious risk. Mr Shume appeared to accept the nature of the risk was one of drowning but he contended the risk of drowning was a low risk, hence the offence was not serious.
21 Notwithstanding that Ms Taylor had a pre-incident condition that made her more susceptible to the condition that ultimately caused her death, in my opinion the risk of drowning or near drowning could not be regarded as a low risk. Ms Taylor was required to supervise five students in a pool measuring approximately 36 metres by 44.5 metres. The pool was over two metres deep at one side of it towards the middle of the river. Mr McDonald was engaged in cooking a barbecue with two of the students some 45 metres from the water's edge and whilst he could see the activity in the water his attention could not have been fully focused on the water. Indeed, at one stage he left the park to obtain change to operate the barbecue.
22 Further, the students from Class 3 taken on the excursion had not been adequately assessed on their swimming abilities but it was known LC was not a good swimmer. The students were intellectually disabled.
23 The young man who pushed Ms Taylor under the water was 5 foot 6 inches to 5 foot 8 inches tall and had a good physical build. Prior to March 2002, LC had been assessed by the Newcastle School as having unpredictable and impulsive aggressive behaviour. It had been reported in December 2001 that LC had "Pushed a student under the water at swimming and tried to hold her under, Mrs Dixon told LC to stop and get out of the pool for five minutes, LC refused and became aggressive." Mr McDonald was aware of this incident but there was no evidence that Mr Donald advised Ms Taylor of the incident or that Ms Taylor was independently aware.
24 Whilst LC seemed to be in a calmer state in 2002 than previously and was in a calm state through most of the day on 15 October 2002, he was prone to be excitable. In February 2002 there was an incident where "LC also became agitated and threw a chair. No one was hurt and LC was brought up to sit outside the staff room to help him calm down. The behaviour has come suddenly after a very settled period."
25 In August 2002 there was a further incident where LC had bitten another person and had been involved in a fight. LC was a student who "needed to be supervised, needed to be watched".
26 Thus, the situation on 15 October 2002 at the inlet pool was that Ms Taylor was required to supervise five students in the pool, two of whom at least were probably not capable of getting themselves out of difficulty if they ventured into the deeper section of the pool because they could not swim or were not good swimmers. LC had a history of excitable, and to a significant degree, unpredictable and aggressive behaviour. He was a lad of good physical build and was known to have pushed a student under the water on a previous occasion. Mr McDonald was not in a position to render immediate assistance to Ms Taylor if she got into trouble and was occupied with two intellectually disabled students cooking sausages on a hot barbecue plate. Whilst he checked on Ms Taylor from time to time, as the incident shows it only took a very brief period for Ms Taylor to be pushed underwater and sustain injury and even if Mr McDonald had been watching at the time, he was not in a position to prevent Ms Taylor being submerged.
27 In my opinion, the circumstances presented a serious risk to Ms Taylor's safety. Moreover, the risk was foreseeable. In circumstances where there was one person attempting to supervise five intellectually disabled students in a large pool that went to a depth of two metres, it was reasonably foreseeable one or more of them might stray into deeper water. It was reasonably foreseeable that given no adequate assessment had been made of the students' ability to swim and, therefore, get themselves out of trouble if they went into deeper water, that Ms Taylor might be placed in a situation where she would need to attempt to bring them back to safer ground. It was reasonably foreseeable that a student who might be a poor swimmer might panic in the deeper water and put at risk the safety of Ms Taylor. It was reasonably foreseeable that given his unpredictability, LC might be the student in question and given his propensity to become excited and that he had on one previous occasion pushed a student underwater, that he might do the same to Ms Taylor.
28 Ms Taylor was placed in a situation of serious risk in having to supervise, on her own, five intellectually disabled students with unknown swimming skills in a large pool that went to a depth of over two metres. That risk was exacerbated with the presence in the pool of LC, given his history of excitability and unpredictability and his poor swimming ability.
29 The risk pleaded was drowning or near drowning. Mr Shume contended that it would be difficult to see how there was a risk of drowning where a person's head was ducked underwater only twice. It seems to me, however, that focuses too much on the actual incident - on what actually occurred and not on the risk. There was undoubtedly the potential for Ms Taylor to have been held underwater for much longer than she was and by the time Mr McDonald was able to render assistance, Ms Taylor could have drowned at the pool.
30 Assistance in assessing the seriousness of the offence can be obtained from a consideration of the nature of the defendant's acts or omissions in failing to ensure Ms Taylor's health and safety. Firstly, there was a failure by the defendant to provide such information, instruction and training to ensure that its employees were aware of and complied with its "Guidelines for the Safe Conduct of Sport and Physical Activities in Schools". The Guidelines were issued in October 1999 to all New South Wales schools and Principals were requested to make teachers aware of the document and its contents.
31 The Guidelines were a most useful document dealing with, amongst other things, guidelines for specific activities conducted by schools including swimming at beach locations and inland waterways. The Guidelines provided for supervision by a minimum of two adult supervisors, who possessed appropriate expertise and or training in the teaching or instruction of swimming and who must be present at all times. They provided that when swimming at inland waterways at least one supervisor must possess a current Royal Life Saving Society of Australia bronze medallion or a Surf Life Saving Australia ("SLSA") bronze medallion or SLSA surf rescue certificate. The Guidelines also provided that there must occur a reasonable assessment of the student's swimming ability to be made as close to the commencement of the activity as is possible.
32 However, neither Ms Urane, the Principal of Newcastle School, nor Mr McDonald were aware of the Guidelines. The reason for this is unknown although I note no formal training was provided to schools when this document was released. Not being aware of the Guidelines, neither Ms Urane nor Mr McDonald knew of the requirement that at least one supervisor possesses a current bronze medallion or surf rescue certificate. Moreover, Ms Urane was unaware of Ms Taylor's competency as a swimmer and she was unaware of Mr McDonald's competency as a swimmer. Mr McDonald did not know what formal qualifications Ms Taylor possessed in swimming. And as I noted earlier, the students from Class 3 taken on the excursion had not been adequately assessed regarding their swimming abilities.
33 It is, of course, one thing to issue these important documents on safety; it is another to follow up and ensure the material has been disseminated amongst teachers and assimilated through instruction and training. The defendant failed in this latter respect, thereby causing Ms Taylor to be placed at risk.
34 The second failure to which the defendant pleaded guilty was a failure to ensure that there was present at all times at the Lemon Tree Passage Inlet pool a minimum of 2 adult supervisors with appropriate expertise and/or qualifications with respect to swimming. In this respect there is some overlap with the first failure; one would expect if training and instruction had been provided to teachers on the safety requirements for school excursions, Mr McDonald and/or Ms Urane would have known about and implemented the requirement for two appropriately qualified supervisors to be present at all times. If there had been two such supervisors in the pool on 15 October 2002, it may not have prevented the risk occurring but it would have reduced significantly the likelihood of it occurring.
35 The third failure was a failure to maintain a safe system of work for Ms Taylor in her work on the excursion supervising the students in or near the water at the pool. Again, there is some overlap with the failure to provide two appropriately qualified supervisors but it is difficult to see how there was the maintenance of any system of work for Ms Taylor. She was effectively left on her own to manage five students as best she could. There was no plan on how she would do that and Mr McDonald does not appear to have offered any guidance in that respect. Mr McDonald made a visual inspection of the pool area, he had knowledge of the environment from his previous visit and he did attempt to keep his eye on the group in the water but that was an unsatisfactory arrangement given he had to supervise two students at the barbecue and go to a shop to obtain change.
36 The fourth failure was an allegation that the defendant failed to ensure that an adequate risk assessment was conducted in relation to the nature of and participants in the excursion. As Mr Shume submitted, there are two aspects to the particularised failure: (i) whether there was an adequate risk assessment in relation to the nature of the excursion or, in other words, the appropriateness of the venue; and, (ii) whether there was an adequate risk assessment in relation to the participants in the excursion. 37 Mr McDonald carried out no formal risk assessment but I note he had been to the Lemon Tree Passage Inlet Pool previously with a different group of students and had on that occasion entered the water. The idea on 15 October 2002 was to get the students accustomed to water, not to teach them to swim. The students could walk into the water but not go any further than allowing the water to be at chest height.
38 Ms O'Brien, in her affidavit, deposed as follows: On 15 October 2002 Mr McDonald did conduct a risk assessment in relation to the excursion which consisted of the following actions: 1 before leaving for the excursion Mr McDonald checked the mood of the class and found that the students were settled; 2 there was nothing to indicate during the trip to the Pool that the students' behaviour had changed; and 3 on arriving at the Pool, Mr McDonald visually assessed the conditions and noted that the water was flat and calm, that the Pool was fenced off and there were no dangers from members of the public. Based on these considerations Mr McDonald made the assessment that it was safe to continue with the planned excursion. Prior to Ms Taylor taking the students swimming Mr McDonald again viewed the water and determined that the water was shallow that the students were settled and therefore that it was suitable to allow the students to go swimming. Also factored into Mr McDonald's considerations was his general understanding of the nature and behaviour of the students in his class that he had developed during the preceding 3 terms of 2002.
39 In considering whether there was an adequate risk assessment I have had regard to the approach of the Full Bench in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (2000) 102 IR 84 at [73]-[74]: [73] Given the nature of the risk, an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels. To what extent might not have been evident, but a risk assessment would have at least raised the issue in the mind of the assessor. Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and the equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focussed on the work associated with the demolition and re-construction of the northern wall - including the removal of the dust wall - and how it might affect the ceiling as a means of access and egress. This would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety. [74] It seems to us that, if after such a risk assessment had been carried out, the risk assessor asked himself or herself whether any action was required to ensure the safety of persons using the ceiling as a walkway the answer would inevitably have been 'yes'. 40 The nature of the risk here was serious; there was the prospect of drowning or near drowning. An adequate risk assessment would have encompassed more than gauging the mood of the students and a visual inspection of the condition of the inlet pool and surroundings. The visual inspection was inadequate, in any event, because it led Mr McDonald to believe that the pool was shallow when in fact that was not the case. 41 An adequate risk assessment would have included an assessment of: (1) The depth of the pool. It was two metres deep in places and presented an obvious risk to someone who could not swim.
(2) The swimming ability of the students. There would be a risk involved in allowing a student who could not swim to enter a pool that was two metres deep unless it could be ensured that the student could not access the deep section of the pool.
(3) Whether one person was sufficient to supervise five students given the size of the pool, its depth and the intellectual disabilities of the students. On any objective test, one person was not adequate in the circumstances.
(4) Ms Taylor's swimming ability and her capacity to deal with a student or students who might stray into deep water. This was not known. Consequently, Ms Taylor should not have been put in the position unless it had been ascertained she was appropriately qualified and physically capable.
(5) The prospect of LC becoming excited or panicky and difficult for Ms Taylor, a 56 year old female, to manage in the pool. LC was a lad of about 5' 6" to 5' 8'' tall with good physical build and a history of unpredictability. That he might present a risk in the pool was entirely foreseeable given the previous incident where LC pushed a student underwater.
(6) Whether it was necessary to have the group in the water under constant surveillance and how quickly could Mr McDonald come to someone's aid if they got into trouble in the deep water. In the circumstances, Mr McDonald was not in a position to render immediate assistance to Ms Taylor.
42 If a risk assessment had been undertaken that included consideration of the foregoing matters, the inevitable conclusion would have been that, in the circumstances, Ms Taylor's safety was not ensured and that the aquatic activities would have to be abandoned.
43 I accept that Mr McDonald did carry out a risk assessment. But it was not adequate. This is not the fault of Mr McDonald. He had received no training or instruction regarding the conduct of a risk assessment. A risk assessment is considered, nowadays, an important, indeed an essential, tool in avoiding exposure to risk. It needs to be carried out conscientiously, objectively and systematically. The type of thought process that must be undertaken is exemplified by the approach in Mainbrace. The defendant has recognised this and now provides the necessary information, training and instruction for assessments to be conducted in relation to school excursions. Unfortunately, the relevant staff at the Newcastle School had not received the necessary information, training and instruction prior to 15 October 2002.
44 I find that the failure to ensure that an adequate risk assessment was conducted in relation to the nature of and participants in the excursion was made out by the prosecution. I further find the failures to ensure the safety of Ms Taylor constituted a serious offence. 45 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27. Each of the four failures was relatively easily overcome. For instance, there was nothing difficult or onerous in providing such information, instruction and training to ensure that its employees were aware of and complied with its "Guidelines for the Safe Conduct of Sport and Physical Activities in Schools". Nor would it have been impracticable to ensure that there was present at all times at the Lemon Tree Passage Inlet pool a minimum of 2 adult supervisors with appropriate expertise and/or qualifications with respect to swimming. As far as undertaking an adequate risk assessment was concerned, the material enabling that to be done had been issued to schools prior to 15 October 2002 but the defendant did not ensure it was disseminated and assimilated at the Newcastle School.
46 In Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18], it was held that although the damage or injury does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. See also s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
47 The seriousness of the risk in this case was manifested in the death of Ms Taylor. If it were not for the fact that Ms Taylor suffered Adult Respiratory Distress Syndrome caused by near drowning she would not have died in 2002. That she had idiopathic pulmonary fibrosis prior to the incident, which was a significant contributing condition to her deterioration after 15 October 2002, does not detract from the fact that her near drowning caused her death.
48 In Capral Aluminium the Full Bench recognised that in the industrial context it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. This case illustrates the importance of having proper procedures and systems in place in circumstances where a minder is required to supervise young people in an unfamiliar, and potentially dangerous, environment. It is appropriate that I make provision in the penalty for general deterrence.
49 As to specific deterrence, the defendant had a very strong commitment to health and safety in the workplace; its policies, practices reflect that fact. Further, through the development and application of its policies, steps have been taken to prevent a recurrence of the offence to which it has pleaded guilty. Nevertheless, in its emanation as the Department of Education and Training the defendant is a large employer and school excursions are commonplace. There is a need in my view, in assessing penalty, to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388.
50 The defendant has a record of previous convictions under the Act (and its predecessor). Accordingly, the maximum penalty in this case is $825,000. Careful attention should be given to the maximum penalties because, as the majority observed in Markarian v R (2005) 215 ALR 213 at [31]: [F]irst because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. 51 The fact that the defendant has previous convictions is an aggravating factor that is to be taken into account pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. Also to be taken into account, as a mitigating factor, is that the offender is unlikely to re-offend: s 21A(3)(g). An assessment of whether an offender under the Occupational Health and Safety Act would be unlikely to re-offend would need to have regard to such matters as: its occupational health and safety policies and practices and their effectiveness in ensuring safety; the offender's commitment to workplace safety in both words and deeds; the measures taken to avoid a re-occurrence of the offence; the size, nature and diversity of its operations; and, the nature of its previous convictions.
52 Having regard to these considerations, it could not be concluded that the defendant exhibits a propensity to continue to re-offend thereby warranting a heavy penalty by way of specific deterrence. For instance, there is no pattern in the previous convictions that would indicate the defendant has a flaw in its approach to occupational health and safety that it has refused to remedy or has habitually ignored or that it manifests a continuing attitude of disobedience of the law. On the other hand, however, given the size, nature and diversity of its operations, the vast scope of its occupational health and safety responsibilities and the fact of its previous convictions, it could not be said with any certainty the defendant is unlikely to re-offend. That is why I have fixed a penalty that will compel the defendant's attention to its duties under the occupational health and safety legislation to ensure the safety of staff and other personnel at its workplaces.
53 Other subjective considerations that I have taken into account are the defendant's cooperation with the investigating authority, its contrition, the defendant's commitment to workplace safety and the early plea of guilty in respect of which I have discounted the penalty by 25 per cent for its utilitarian value.
54 I am satisfied on the evidence, including the agreed statement of facts that the plea of guilty was properly made. A verdict of guilty is entered and the defendant is convicted of the offence under s 8(1) of the Occupational Health and Safety Act 2000 as charged. I so order.
55 There were two victim impact statements tendered. In respect of those statements, I intend to adopt the same approach as that taken in Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [37]-[43]. In particular, the Court is constrained from taking into account the contents of the victim impact statements in coming to a conclusion as to what is the appropriate sentence in this case. 56 Anne Louise Hobden was a daughter of Ms Taylor. She described the loss of her mother as having had a significant impact on her life and the lives of her children and husband. She stated: This highly traumatic experience has affected my health, emotional well-being, career, interpersonal relationships and day to day existence. I still find it very difficult to come to terms with the fact that my Mother is actually dead. The reality of never being able to hold her hand, hear her voice and see her smile again is so very difficult to bear. 57 Ms Hobden described the shock of hearing about her mother's plight and the distress she experienced on seeing her mother's condition deteriorate. Ms Hobden stated: My Mother died two weeks after the accident. I received a call in the middle of the night asking me to go to the hospital immediately. I was unbelievably scared at this point, as the reality of what was happening set in. When I arrived at the Hospital I was to learn that Mum had died. Feelings of anger, emptiness and pain swept over me. I then needed to go home and tell my family. 58 Ms Hobden described the emotional difficulties she experienced after the funeral of her mother, the need to seek psychological help, the police investigation, the effect of her mother's death on her employment as a teacher, the effect on her children and husband and her continuing sense of loss, anxiety and distress. 59 Janine Curtis is the younger daughter of Ms Taylor. Ms Curtis described the shock of hearing the news of her mother's accident and seeing her in hospital, of how scared and helpless she felt. Ms Curtis said her life turned into a nightmare following the death of her mother. She described how much she missed her mother and the sadness of her own two small daughters not knowing and learning from their grandmother. Ms Curtis said in her statement: In my day to day life I still need to suppress the thoughts of mum as so many things remind me of her & those feelings rise up and I can't think of anything else. 60 Ms Curtis described how she gets very depressed at times, her feelings of love for her mother and her deep sense of sorrow and loss. 61 The Court extends its sympathy to Ms Curtis and Ms Hobden and their families for the loss of Ms Taylor. Recently publicity, I think, has reminded the community that workplace deaths are not mere statistics but their dreadful consequences radiate through the deceased's entire family, work colleagues and friends and the hurt and grief may be felt for many years and, in some cases, it never goes away.
62 In arriving at an appropriate penalty in this case I have had regard to all of the relevant factors and circumstances addressed in this judgment. I have also taken into account what I regard as overlap amongst the particularised failures in order to avoid any double counting. I fix a penalty of $225,000. Orders
63 In addition to the orders made in [54] of this judgment the Court also orders that: (1) The defendant is fined an amount of $225,000 with a moiety thereof to the prosecutor. (2) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Inspector Kilpatrick
The Crown in the Right of the State of New South Wales
(2000) 49 NSWLR 610
(1999) 92 IR 8
(1996) 82 IR 384
(2000) 102 IR 84
(2005) 215 ALR 213
(2003) 130 IR 364
(2000) 95 IR 383