SafeWork NSW v Millart Enterprises and Notlad Enterprises

The Offender's Case on Sentence

1. The offenders relied on an affidavit of Perry Frank Bartholomew affirmed 14 February 2018. Mr Bartholomew was present in Court but not required for cross-examination. The content of the affidavit can be summarised as follows.
2. The offenders traded in partnership as Byron Bay Dive from February 2003 to 30 June 2017. Byron Bay Adventure Company Pty Ltd (BBAC) purchased the business on or about 30 June 2017. Mr Bartholomew is the director and secretary of BBAC and the ultimate owner of the shares through a company 72% Pty Ltd.
3. Notlad and Millart are no longer involved with Byron Bay Dive. Each are still registered.
4. Byron Bay Dive was established in the late 1960's by its original owners and had traded continuously since that time. It has 2 full-time employees and 8 casual employees. It offered 5 drift snorkelling tours and 5 diving tours per day, dependent on weather and ocean conditions. Divers are required to be certified or undergoing training. Snorkelers are required to be screened and briefed before being permitted to participate in a snorkelling tour.
5. Mr Bartholomew is involved with Byron Bay Dive on a day to day basis. He has worked in the diving industry for 22 years. He is a qualified diving instructor, marine coxswain, first aid instructor and holds a Diploma in Paramedical Science. He has been a retained member of Fire and Rescue NSW since 2003.
6. On behalf of Millart and Notlad Mr Bartholomew accepted responsibility for the failings of them and expressed deep remorse and regret for the exposure of Ms Swarbrick to the risk of death. He stated that Byron Bay Dive was and remains committed to its health and safety obligations.
7. The incident has had a profound effect on the staff members involved and Byron Bay Dive arranged counselling for them.
8. Mr Dalton did not return to work for 2 months after the incident. When he did return he could not conduct snorkelling or diving tours for a further 7 months. He was treated with medication and psychological counselling. The impact of the incident led to him selling his interest in the business.
9. Ms Riley was also deeply affected and continues to undergo regular psychological counselling.
10. The incident also continues to weigh on Mr Batholomew's mind and he has trouble sleeping.
11. The SMS was designed and implemented by Mr Dalton based on the Australian Standard. The SMS required 3 briefings of participants before they were permitted to enter the water.
12. The RIF included a number of acknowledgments to be made by the participant, including that: 1. concealment of any condition that is incompatible with the activity could put their safety at risk; 2. snorkelling and swimming can require strenuous exertion and for safety it was recommended that participants snorkel in pairs and remain close to the boat; 3. if the participant considered themselves to be a poor swimmer or that they were constrained by their medical conditions, it was strongly recommended that they be supervised, that flotation devices were available and that they wear a wetsuit; 4. that if they had any questions about their medical disorders or medications that they advise staff when handing in the RIF; 5. that snorkelling was a physically strenuous activity involving the risk to person, including heart attack, panic and hyperventilation; 6. that the participant was in good mental and physical fitness and had no condition that could be affected by snorkelling and that they were not taking medications 'contra indicatory' to snorkelling; 7. that snorkelling was to be undertaken at a remote location where medical attention is not immediately available.
13. Staff were required to read and assess the RIFs for contradictions or contraindications for the relevant activity. A contradiction would rule a participant out of an activity whereas a contraindication would not necessarily rule a participant out of an activity but would prompt further inquiry. For example, a person suffering asthma could not dive, but may be able to snorkel depending on the severity and frequency of asthma attacks.
14. The SMS provided that the staff member was to question a participant about a contraindication. If the worker believed that further investigation was required because it presented a risk to the customer they were required to inform management on duty. The manager was then required to speak to the customer to determine if the customer could participate safely.
15. Participants were issued with either a short or long wetsuit. It was explained during the briefing process that a long wetsuit provided additional buoyancy.
16. Byron Bay Dive has had no previous safety incidents.
17. Mr Dalton was very experienced. He had 20 years' experience in the dive industry at the time of the incident. He held a coxswain's certificate since 1993 and was a dive instructor trainer since 2001, the highest level of qualification available. He had conducted in excess of 5,000 dive and snorkelling tours to Julian Rocks.
18. Byron Bay Dive had an active policy of cancelling tours if the weather or ocean conditions were unfavourable. In the 3 years leading up to the incident, Byron Bay Dive had cancelled 41%, 32% and 30% respectively of all booked snorkelling tours based on its assessment of the safety of the weather and ocean conditions.
19. Following the incident, Byron Bay Dive reinforced its existing policies with its staff and improved its systems in a number of respects. It now requires the communication of all disclosed medical conditions to management and to the captain of the vessel, on which the participant is travelling. The details are entered in the captain's log for each vessel. It recommends to all participants that they use additional floatation devices when snorkelling. It now asks participants if they require a snorkelling lesson at the time of booking.
20. If a participant identifies themselves as a poor swimmer, they are required to undertake a snorkelling assessment at the training pool at the premises. Snorkel guides are now required to carry a rescue tube which is a flotation device that can be used to rest on or to tow a participant of the kind used by Surf Life Saving Australia. The medical information provided by a participant is now assessed and checked by the captain of the vessel as well as the shop staff. A soft horse shoe floatation device has been installed in each vessel where it can be accessed by the captain when operating the vessel.
21. All staff have completed a local risk control course provided by an external training provider. The initial briefing has been supplemented by introducing a film component to it, to provide for visual and oral communication. All staff have been provided with and trained on the content of the Qld Worksafe Guide.
22. Mr Bartholomew has completed the Diploma in Paramedical Science to assist with providing a high standard of first aid and to assess medical conditions that are raised. The staff have been instructed to seek Mr Bartholomew's assistance with assessing medical conditions. Byron Bay Dive has also subscribed to an application 'Rx' that provides information about medications, including what they are used for and any side effects.
23. Byron Bay Dive is a small family owned business that is dependent on the tourist market and seasonal fluctuations. The business only had 2 permanent employees, including Mr Bartholomew.
24. The offenders also tendered a selection of Ms Swarbrick's medical records obtained on subpoena. The effect of those records can be summarised as follows.
25. In or about May 2013, Ms Swarbrick was diagnosed with mixed connective tissue disease. At the time of diagnosis she had been complaining of progressive dyspnoea (breathlessness) after 5-10 minutes of exertion on flat ground. She had severe pulmonary hypertension and interstitial lung disease demonstrated by medical investigations. She was referred to Dr Tannous, cardiologist for treatment.
26. In December 2013, Ms Swarbrick was reviewed by Dr Tannous. She had been receiving oral chemotherapy to treat her mixed connective tissue disease. She reported being 'perhaps a little more breathless'. Dr Tannous arranged for an echocardiogram (an ultrasound of the heart) to be performed. It was essentially unchanged from September. Dr Tannous opined that the deterioration in her wellbeing could have been the result of a worsening of her pulmonary hypertension, notwithstanding that there were no clear signs of this on the echocardiogram. Dr Tannous advised her to come back in March 2014 or earlier if her breathlessness got any worse.
27. In November 2014, Ms Swarbrick was reviewed by Dr Tannous. She continued to suffer from breathlessness on exertion and continued with the oral chemotherapy. Despite her complaints of increasing breathlessness, a 6 minute walk test conducted in August 2014 was stable. A high resolution CT scan (HRCT) in November 2014 demonstrated slight interval changes and alveolitis consistent with interstitial ling disease. An echocardiogram demonstrated pulmonary pressures at the upper end of normal. A 6 minute walk test in November 2014 demonstrated she could walk 432m, but after which she had significant oxygen desaturation. Dr Tannous opined that progressive lung disease was the cause of her breathlessness. Prof Fulcher was going to try some more aggressive form of immunosuppressive treatment. There was no objective evidence of worsening pulmonary hypertension.
28. On 3 December 2014, Ms Swarbrick saw Prof Fulcher. He was concerned for her as she presented as markedly short of breath on minimal exertion and complained that she had been suffering these symptoms for the past 4 weeks. Spirometry testing produced results that were about 60% of predicted. Prof Fulcher thought that there had been a significant worsening of her underlying disease and he proposed admitting her for a number of courses of intravenous chemotherapy and immunosuppressive treatment
29. On 20 January 2015 Ms Swarbrick saw Prof Fulcher. She reported side effects from the chemotherapy, but thought that her breathing was improved reporting that she had increased energy and muscle strength.
30. On 2 March 2015 Ms Swarbrick saw Prof Fulcher. She completed chemotherapy on 31 January 2015 and reported that her breathing had been good, although not normal and her muscle power was fine. She reported hoarseness in her voice and was referred to an ear, nose and throat specialist. She was advised to continue with oral chemotherapy.

Consideration

1. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

1. The risk of serious injury or death to a person with a serious medical condition engaging in a strenuous activity such as snorkelling in an area with a strong current was obvious.
2. What was not obvious to Ms Riley or Byron Bay Dive was the nature and extent of Ms Swarbrick's medical condition, and this was so for 2 reasons.
3. First, Ms Riley did not ask appropriate follow-up questions of Ms Swarbrick upon which she or Byron Bay Dive could make any informed assessment. It would have been prudent for Ms Riley to ask the for the nature of Ms Swarbrick's condition, what activities made her breathless, what level of exertion made her breathless, what medications was she taking and how did they affect her. By asking if Ms Swarbrick felt able to participate, the exercise of completing the RIF became an exercise in self-assessment by Ms Swarbrick as opposed to an assessment by Byron Bay Dive. Ms Riley failed to comply with the requirements of the SMS in that she failed to notify management of Ms Swarbrick's medical conditions. These matters were reasonably practical and could have been implemented at no cost to the offenders.
4. Second, Ms Swarbrick completed the RIF acknowledging that snorkelling was a strenuous activity, that it involved the risk of a heart attack and hyperventilation and declaring that she was of good physical fitness to undertake the activity. Ms Swarbrick then verbally confirmed that her ability was not adversely affected. Ms Swarbrick brought her own mask, snorkel and fins from which it could be inferred that she had been snorkelling previously. I would infer that Ms Swarbrick did not believe that her medical condition was such that she could not participate in the tour or that she should seek medical advice before doing so. Ms Swarbrick attended with the group, including her family to participate in the tour. She would not have done so if she had realised the extent of the risk to her life posed by participating in the tour. What Ms Swarbrick represented to Byron Bay Dive in the RIF and said to Ms Riley did not reflect the nature and extent of her medical condition set out in the contemporaneous medical records. Even if Ms Riley had asked appropriate questions, it is inappropriate to speculate on what the answers provided by Ms Swarbrick would have been. I am not satisfied beyond reasonable doubt that had Ms Riley asked appropriate questions that it would have been obvious to the offenders that Ms Swarbrick should have been excluded from participating in the tour, although it is possible they may have done so.
5. The offenders could have required Ms Swarbrick to use a noodle or to wear a life jacket. These options were explained to her, but not required by the offenders. These measures could have been implemented at no cost. The use of those devices may have alleviated her panic, but would probably not have reduced the exertion required to swim against the current.
6. The offenders could have organised increased supervision of Ms Swarbrick but that would have come at some cost, because it would have been necessary to employ another snorkel guide dedicated to Ms Swarbrick. It should be noted that such increased supervision would not have added much to providing for the safety of Ms Swarbrick. Ms Minster was close by when she got into difficulty and responded quickly and appropriately.
7. The situation quickly escalated and became an emergency rescue within minutes of Ms Swarbrick entering the water. The remaining particulars of the summons are addressed at things that could have been done better during the rescue.
8. Mr Dalton could have remained on the mooring until he was satisfied that all of the snorkelers were in current A. When he moved the vessel only Amy and Taneesha where not where they should have been and he instructed Mr Rullin to supervise the Cape Runner group. Whilst remaining on the mooring may have allowed Mr Dalton to respond faster to the emergency, the period of time involved was minimal. He was close by when his assistance was requested and he was in the process of picking up Amy and Taneesha from Current B, which is something he may have been required to do at the relevant time in any event.
9. The offenders could have employed a third person to be a designated lookout to respond to emergencies. This had never been required in the past. I am of the view that the impact on safety would have been minimal. In the absence of a designated lookout, the life ring could have been positioned closer to the controls of the vessel to allow it to be deployed by the captain whilst controlling the vessel. The offenders have now installed another soft life ring near the controls of each vessel and they accept that the measure was reasonably practical. However, even if the life ring could have been deployed by Mr Rullin when he was trying to manoeuvre Sports Dive closer to Ms Swarbrick, I do not think that it would have helped much. By that time, Ms Swarbrick had already exerted herself and she was floating on her back and her head was being supported out of the water by the other people. It would have prevented her from being submerged whilst being towed on the mermaid line.
10. The fact that Ms Swarbrick died is relevant to objective seriousness. However, I am not satisfied that she drowned. The doctor conducting the autopsy presumed that Ms Swarbrick drowned on the basis of the information he was provided with in the P19 form by the police. He explained that the absence of water in Ms Swarbrick's lungs was probably explained by the time delay in conducting the autopsy. It is much more likely that Ms Swarbrick got into difficulty breathing as a result of using the snorkel, exerting herself in order to swim against the current and as a result of being submerged when she was towed on the mermaid line and that as a result she suffered a heart attack, which was complete by the time she was taken out of the water. This conclusion is consistent with the evidence that she became breathless, that for the most part she was floating on her back with her head supported out of the water, the extent of her underlying lung disease and possible pulmonary hypertension and that there was no water found in her lungs at autopsy.
11. Ms Swarbrick knew of the risk of a heart attack and had accepted that such a risk might manifest by signing the RIF.
12. Overall, I am of the view that this is an exceptional case because of the competing circumstances of aggravation and mitigation, of which the mitigating circumstances are considerably more prominent. The objective seriousness is in the low range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
2. There is also a need for specific deterrence is significantly reduced. Neither of the offenders continue to operate the business. The directors of the offenders have both suffered ongoing effects of the incident, but in particular Mr Dalton who is no longer involved in the industry and has suffered from a mental condition caused by the incident.

Aggravating factors

1. The injury harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk.

Mitigating factors

1. The offenders do not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offenders operated in partnership since February 2003, conducting more than 5,000 pervious tours without incident.
2. The offenders have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offenders have accepted responsibility for the failings that led to the risk to which Ms Swarbrick was exposed. Mr Bartholomew through BBAC has implemented changes that are significant and are likely to create a safer operation.
3. The offenders has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offenders expressed remorse through the affidavit Mr Bartholomew as well as through their actions in supporting the staff and implementing changes. I am satisfied on the balance of probabilities that the offenders have accepted responsibility for their actions and have demonstrated genuine remorse and contrition.
4. The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea.: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
5. The offender co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
6. I have taken into account the personal toll that the incident has had on Mr Dalton and Mr Bartholomew.
7. The offenders were involved in an equal partnership at the time of the offence. I am satisfied that the same penalty is warranted for each offender, despite there being some minor differences between their respective positions.

Capacity to pay a fine

1. The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. The offenders were both small companies operating in partnership. The evidence is otherwise insufficient for me to conclude that they have a limited capacity to pay.

Penalty - Millart

1. Millart Enterprises Pty Ltd is convicted.
2. The appropriate starting point for a fine is one of $80,000 less a discount of 25% to take into account the plea of guilty.
3. I impose a fine of $60,000.
4. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. I order that Millart pay the prosecutors costs as agreed or assessed.

Penalty - Notlad

1. Notlad Enterprises Pty Ltd is convicted.
2. The appropriate starting point for a fine is one of $80,000 less a discount of 25% to take into account the plea of guilty.
3. I impose a fine of $60,000.
4. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. I order that Notlad pay the prosecutors costs as agreed or assessed.

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. Decision last updated: 19 March 2018