Director of Public Prosecutions v Port Fairy Community Pool Management
[2024] VCC 817
•31 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL JURISDICTION
CR -24-00349
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PORT FAIRY COMMUNITY POOL MANAGEMENT |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Warrnambool |
DATE OF HEARING: | 22 May 2024 |
DATE OF SENTENCE: | 31 May 2024 |
CASE MAY BE CITED AS: | DPP v Port Fairy Community Pool Management |
MEDIUM NEUTRAL CITATION: | [2024] VCC 817 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Breach of s 23 of the Occupational Health and Safety Act 2004.
Legislation Cited: Occupational Health and Safety Act 2004
Cases Cited:
Sentence: Fine in the sum of $$80,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Chisholm | Office of Public Prosecutions |
For the Offender | Mr S. Russell with | Moray and Agnew Lawyers |
HER HONOUR:
1Port Fairy Community Management Group (‘the Group’) has pleaded guilty to a single charge of breaching s23 of the Occupational Health and Safety Act 2004. The specific allegation is that The Group at Port Fairy in Victoria on 21 May 2021 failed to ensure, so far as was reasonably practicable, that persons (in this instance the children) other than its employees, were not exposed to risk to their health and safety arising from the conduct of its undertaking. The Group runs the Belfast Aquatic Community Pool and Fitness Centre Port Fairy (Belfast). The Group’s undertaking included the operation of Belfast.
2Merrivale Primary School (‘the school’) arranged an excursion for its Year 2 class to Belfast. The swimming abilities of the Year 2 children varied. The excursion involved the use of an inflatable aquatic device (the ‘inflatable device’) in the pool. There was a risk to children (persons) who were non-swimmers, or weak swimmers, of drowning while using the pool and the floating device at Belfast, causing serious injury or death.
3It was reasonably practicable for the Group to eliminate or reduce the risk by providing and maintaining a system in which it:
a)Tested the swimming abilities of the children; and
b)Provided the lifeguards with information and instruction on the procedures for using the inflatable device including -
i.How the inflatable device was to be used;
ii.Who could use the inflatable device; and
iii.How the use of the inflatable device should be supervised.
4The Group failed to provide and maintain the above system of work. Persons who were exposed to the risk included, but were not limited to, Year 2 school student Cooper Onyett. I will refer to him as ‘Cooper’ in the course of these reasons. Specifically, the cohort of persons who were exposed to the risk were Year 2 or primary school children who were students at the school and who attended the excursion at Belfast.
5The maximum penalty for an offence under s23 of the Act is 9,000 penalty units.
6At the time of this offence the value of the penalty unit was $165.22 and the applicable maximum penalty therefore equates to $1,486,980 or approximately $1.5m.
7In separate proceedings related to the same incident at Belfast, the Department of Education whose undertaking included the operation of the school, have pleaded guilty to a single charge of breaching s 23 of the Occupational Health and Safety Act 2004. The particulars of the breach by the Department of Education differ from that alleged and admitted by the Group.
8To assess or appreciate the seriousness of this breach of the Occupational Health and Safety Act, it is necessary to outline some of the key facts as agreed between the prosecution and the Group contained in prosecution opening on plea dated 15 April 2024 and filed in these proceedings.
Planning the camp
9As to the planning of the camp and excursion to Belfast was planned by the school as part of a camp for Year 2 students. (‘the excursion’). Prior to the excursion, Skye Meinen, Cooper’s mother, completed the school’s excursion paperwork which included a Confidential Medical Information Form for Excursions. Ms Meinen ticked a box on that form indicating that Cooper was a ‘beginner swimmer with little or no experience including in shallow water.’ There was also an option to tick a box indicating ‘Intermediate swimmer -basic skills - able to swim 25 metres with a recognisable stroke.’
10As was apparent from the information provided by the parents to the school of the 28 Year 2 students, there were 16 beginner swimmers and 12 intermediate swimmers to attend the excursion.
Making a group booking
11As to making the booking, around 14 May 2021, a week before the excursion to Belfast, Troy Tampion, a teacher at the school, called Belfast about the excursion and spoke with Shaun Murrihy, a senior lifeguard and pool manager at Belfast. Mr Tampion informed Mr Murrihy of the number of children who would be participating and that the children were Grade 2 students. Mr Murrihy advised Mr Tampion that as a result of a new floating obstacle being available at Belfast, an extra lifeguard would be needed for the excursion. That was arranged and funded by the school.
12During the course of communications between the school and the Group, the Group did not request additional information regarding the children’s swimming abilities and the school did not offer the information about the children’s swimming abilities that had been collected in the confidential medical forms referred to above.
The incident
13On 21 May 2021, 28 Year 2 students and three staff members, including Mr Tampion, arrived at Belfast at about 10 o’clock. Also present at Belfast were Mr Murrihy and an additional lifeguard, Aaron McInnes.
14The school had booked the pool and the use of the inflatable device. The course or the inflatable device is nine metres long and 1.6 metres wide and similar to a bouncing castle. The inflatable device was set up longways with one end touching the edge of the pool and the other end extending less than halfway into the pool towards the office end. As the inflatable device was set up towards the deep end of the pool, the depth of water in the area where the inflatable device was located ranged from between 1.2 to 1.35 metres deep.
15Upon entering the pool area, the children were introduced to the two lifeguards, Mr Murrihy and Mr McInnes. The children were directed by their teachers not to interfere with other swimmers and were informed about which end of the pool was deep.
16Mr Murrihy was in charge of the activity with the inflatable device. After the children had changed into their swimwear, Mr Murrihy asked those children who could swim to raise their hands. He then asked the children how many of them had had swimming lessons, of which about a dozen indicated they had. The children then divided into two groups: those that could and those that could not swim, or not swim well enough to get themselves to the surface. Those children that could swim were allowed to go with Mr Murrihy to the inflatable device while those that could not swim or did not want to go on the inflatable device, were to remain at the shallow end of the pool with the teachers. No representative from the Group conducted any assessment of the children’s swimming abilities prior to the start of the activity.
17Mr Murrihy provided instructions to the children who were lined up in single-file next to the inflatable device. He instructed them they were to jump on and try and get over the obstacles to the end. Once they got to the end, or if they fell off along the way, they were to swim to the divider wall in the pool that separated the shallow from the deep, about three metres from the device. At this stage about 20 children had lined up for the use of the inflatable device.
18As the children lined up at the device, teachers from the school, including Mr Tampion, moved to positions where they believed they could supervise the children. Meanwhile, Mr Murrihy stationed himself adjacent to the inflatable’s entrance and Mr McInnes, an additional lifeguard, took up position on the edge of the pool. Mr McInnes stood at the west end of the pool edge, out of the water, about five metres north of Mr Murrihy. Mr McInnes could see down the north side of the inflatable alongside the swimming lane. However, he could not see directly behind the inflatable device.
19The children commenced taking turns using the device one by one. It soon became apparent to Mr Murrihy, or after only one or two children had their turn, that the children in his group were struggling with the inflatable device task. He jumped into the pool to assist children to the dividing wall and helped each of them over to the shallow side.
20At this point Mr Murrihy stopped Mr McInnes from letting any more children get onto the inflatable device and instructed him to put a floating rope divider in the shallow pool. Mr Murrihy remained in the pool and positioned himself in the water at the exit point of the device. The children returned to using the device.
21From his position in the water Mr Murrihy identified a number of children as weak swimmers and assisted them to get to the edge of the pool. He then directed them into the shallow pool area where they were to remain. One of those children he assisted into the shallow water was Cooper.
22Over the next ten minutes, Mr Murrihy saw Cooper on a further two occasions: first, jumping from the pool’s divider rope into the water at the shallow end; and then standing on the pool’s dividing wall, which he directed him to get off.
23After about half an hour Mr Murrihy had removed at least 12 children from the water around the inflatable device and had been required to carry or assist them over the divider to the shallow water. He determined that only six were competent enough swimmers to get back to the edge of the pool from the inflatable device without assistance. These children were permitted to continue having turns on the inflatable device while the other children were to remain in the shallow water.
24Meanwhile, in the deep end of the pool Caroline McRae and her daughter were swimming. At around 10:43 am Ms McRae spotted what she believed was a boy floating underwater. Initially she thought he might have been holding his breath but soon realised something was not right and yelled out for Mr Murrihy to help. By the time he was able to assist, she had managed to grab the child from the pool floor and they transported him to the pool deck. The child was Cooper, and although Mr Murrihy commenced CPR he was unable to revive Cooper.
Expert Report
25WorkSafe obtained an expert report from Andy Dennis of Life Saving Victoria.
26Relevant to the Group, Mr Dennis in respect to the testing of the children, opined that:
’As an alternative to the use of the school forms to advise of student swimming capability, a simple swimming test (on arrival) would have been sufficient to enable swimming capability to be established.’
27This is considered industry practice and referenced as a procedure in the facility’s (or the Group’s) own documentation.
28There was no evidence that a swimming test was undertaken to establish the capability of the students.
29In respect to the standing operating procedure, Mr Dennis opined:
’It is also industry practice for operating procedures (or similar) to be in place for features such as the aquatic inflatable device. These practices are recommended through the Australian standard and industry guidelines (GSPO).’
30There were no appropriate operational procedures associated with the safe use of the aquatic inflatable device for the facility. As such, it is difficult to establish factors such as: how the device should have been used, who could use the device, and how it should have been supervised.
31Whilst operational procedures would also include a range of other information and advice, these three factors are critical to safe use and applicable to the occurrence at Belfast.
32At the time of the incident the risk and above measures were known within the industry and referred to in industry guidance.
Risk
33The risk posed by drowning in a public pool was well known within the industry. In this instance the risk eventuated on 21 May 2021 when Cooper drowned at the workplace or at Belfast.
Failure to take reasonably practicable measures - The Group
34Prior to the incident no representative from the Group tested any the children’s swimming abilities, nor did it have the standard operating procedure for the inflatable device.
35It was reasonably practicable for the Group to eliminate or reduce the risk by providing and maintaining a system in which they:
i.Tested the swimming abilities of the children before they went in the pool; and
ii.Provided lifeguards with information and instruction on procedures for use of the inflatable device, including how it was to be used, who could use it and how the use of the inflatable device should be supervised.
36The Group failed to implement the above reasonably practicable measures.
37I was provided with detailed submissions from both parties and referred to relevant material. I take those matters into account.
38The objective seriousness of this offence relates to the gravity of the breach and not the consequences that arose because of the breach. Before turning to that, I will address the Victim Impact Statements.
39The material in victim impact statements have a role to play, both as a consideration in sentencing under the provisions of the Sentencing Act, but also a recognition that as a result of the breach, Cooper’s family and the school community have been impacted significantly.
40The material contained in the victim impact statements reveals the devastating impact on Cooper’s mother, father, both sets of grandparents, aunt and parents of some of Cooper’s friends, or parents of children who had been at Belfast with him the day of the incident. They were formally tendered on the plea. Each of their victim impact statements was read in court by the prosecutor and each of the deponents attended court in person, or one of them remotely. The emotions expressed remain raw with grief issues unresolved and the toll on Cooper’s family being very considerable. Cooper was a much-loved little boy and the loss and pain suffered by those close to him is extremely sad and heart rendering.
41I want to refer in more detail to the victim impact statements, they serve to meet an important role in recognising victim participation in the sentencing process and can play a role, however minor, in the social rehabilitation and personal recovery of victims and recognising that they have a role to play in the criminal justice system.
42Cooper’s mother outlines learning about Cooper’s death as follows:
’I don’t think you can truly ever comprehend what it feels like for your heart and world to be shattered into a million pieces, until it happens. It is an absolute gross understatement to say that the day I got the call from the school regarding the absolute atrocity that took place on that final day of school camp, broke my heart.’
43She speaks of the stark contrast of feelings in what she anticipated with Cooper coming home full of excitement from his first camp, to the devastation and reality of what actually occurred. Her trauma continued with having to tell her son, husband and other family members about Cooper. Tragically she states:
’Instead of running a warm bubble bath to wash the chlorine from his skin, I had to use a dish and face washer from the hospital to wash him down. I got to comb his hair the way he liked it and took one last look at my final baby before I kissed his forehead goodbye before he was sent to the morgue. At the end of that day we only came home with a lock of his hair, some feet and hand prints, his bag of belongings we sent with him and a lot of torment and emptiness.’
44She is burdened by relaying her story in general day-to-day ordinary conversations with others about family and children and that she is compelled to relive the trauma all over again being struck by the same guilt and sadness that others show to her. She notes:
’Those are the times that catch you out of nowhere on a good day and drag you right back down the emotional ladder’.
45All aspects of her life have been impacted. Her work suffered, particularly when she encountered people connected to the school. She suffers panic attacks. Apart from the devastating impact on her with the loss of her son, she poignantly concludes:
’My wishes moving forward are that no other parent ever have to go through what we have. No parent should have to second guess the safety of their child when sending them away on an excursion of any kind. Throughout the last three years, 1 have had just one dream: that I could rewind time and that at the end of the day our ray of sunshine could come home to make our hearts whole again, to remove the hurt, not only from us, but Jett, Cooper’s extended family and friends, and most of all, to remove the memories from his peers that witnessed and have dealt with a lot more than they should have had to at such a tender age.’
46Cooper’s father, both sets of grandparents and aunt eloquently expressed similar sentiments as to the devastating impact Cooper’s death has had on their lives. His father expressed difficulties dealing with the trauma, with sleepless nights, panic attacks and re-visiting the area where it occurred. His aunt and grandparents also set out the experience of their grief, the impact that Cooper’s loss has had on the family and the devastation that they will not experience all the joys and life events that Cooper, if this event had not occurred, would have experienced with them. Cooper’s aunt also reveals the angst she now has allowing her children to participate in similar activities.
47The impact has not been limited to family members but also the school community. Cooper’s aunt and other parents at the school now feel much more concerned about what their children should be able to do, whether with swimming lessons, camps, excursions or other school-related activities. Some also reveal the significant impact this incident has had on their own child’s wellbeing as a consequence of them going on the excursion and being exposed to the trauma and impact of this incident at such a young age.
’Each time camp has been offered to my children since that day, the first thing I do is check the activities list and weigh up the risk factors of a possible tragedy taking place. I get the sick feeling in the pit of my stomach and I am reluctant to allow them to participate. Even though previously I thought of camps as a wonderful opportunity they can experience with their friends, now it has become a trigger and an anxious filled experience, not just for me but also for the children who show a lot of anxiety around attending camps.
Gravity of the breach
48I turn then to the objective seriousness of this offence. There are three factors to consider in making that assessment:
i.The extent of departure from the duty that is owed including the level or extent of the Group’s disregard for the safety to whom the duty was owed. This involves an assessment of the degree to which the Group departed from the duty that was owed to avoid the risk;
ii.The extent of risk to the health and safety that was created or was reasonably foreseeable;
iii.The likelihood of the risk or potential harm occurring.
49As to the first matter the prosecution submitted that the Group’s system in respect of the risk was ‘woefully inadequate’. When looking at the extent of the departure from the duty owed in respect to testing of the children’s swimming ability and in respect of the standard operating procedures in relation to the inflatable device, they both departed from industry standards. In respect of the latter, what was in place fell short of standards, that the lifeguards were ill equipped to maintain safe practices with inflatable device as they themselves were unaware, on the material that was available to them, of the relevant industry standards.
50It was submitted by the prosecutor that ‘you’ve got a situation where there is a constant risk, you’ve got children whose swimming abilities you don’t know and then they enter the pool to get on a device when no-one knows what the industry practice is around using it.’
51Counsel for the Group challenged this submission regarding the extent of departure, highlighting the systems that were in place at the time as set out in written submissions filed on behalf of the Group in these proceedings. (See paragraph 24). Reference was made also to the training and experience of relevant staff, particularly Mr Murrihy, and the steps that he had previously undertaken, and did undertake the day of the incident, to avoid or reduce the risk to the safety of the patrons using Belfast. (See paragraphs 24H (i) and (ii))
52Further, counsel highlighted the difficulties that were encountered that day with planning for the safety of the activity when it was realised that the teachers from the school were not to be participating in a supervisory role in the activity.
53There was little or no dispute between the parties in respect of the second and third matters. Clearly, given the nature of the undertaking, there existed a significant risk of drowning as a result of the breach.
54It was industry practice and within the Group’s own procedures that the children’s swimming abilities should have been tested prior to the children being allowed to enter the pool. The risk in failing to do so was obvious, particularly given the age of the children and likely different capabilities of swimming within the class. Testing their ability was fundamental to obtaining a safe workplace.
55The measures that were taken by the Group to assess the children’s capabilities, given the unreliability of that information obtained from young children in the context of them likely to be eager to engage in the activity, did not reduce that risk.
56Further, steps that were taken in the course of the activity as to the assessment of the children’s capabilities, highlighted the necessity for the assessment to have been conducted before any of the children entered the pool.
57In circumstances where there no testing of the children, and thus no knowledge of the children’s swimming ability, coupled with the use of the inflatable device where those supervising that activity were not provided with critical information regarding safety procedures with its use.
58Despite the experience of those supervising the activity and steps taken by them regarding the safety of the use of the inflatable device, these fell well short of what was required or industry standards.
59Even accepting matters raised by counsel for the Group, I find this was a very serious breach of the duty owed to avoid the risk. There was a high level of risk in this environment and the Group failed to a significant extent to take relevant action to protect the children from that risk resulting in tragic consequences that were foreseeable. The risks to the children who were poor or non-swimmers in engaging in any pool activity, including the use of the inflatable device, were obvious. It was for the Group to take practicable steps to protect them.
60The purpose of this legislation is to protect people, or in this instance children, from serious injury or death - in this case from drowning. The sentence imposed must reflect the proper application of general deterrence and denunciation.
61There are some matters in mitigation. The Group has no prior convictions and has run Belfast for a number of years with no reported safety issues.
62The Group pleaded guilty to the charge at an early stage. Although there were committal proceedings the issues raised were limited. There is a utilitarian value to the plea of guilty as the Group have saved the time and cost of a trial to the community. Significantly, none of those involved in this incident were required to relive the traumatic incident again in giving evidence in a trial.
63The Group’s plea of guilty is indicative of remorse and consistent with the evidence given by Mr Christopher Martin, Chair of the Group or its Committee of Management, and to the sincere sympathy offered to both family and friends of Cooper. The plea also demonstrates a willingness to facilitate the course of justice and an acceptance of responsibility for the offending.
64Mr Martin gave evidence of the impact the incident has had on the local community and the changes that have taken place over the last three years as a consequence of it to ensure that a similar event does not happen again. The Group has worked with WorkSafe and Life Saving Victoria to achieve a silver rating, which he considered a significant achievement. He mentioned changes in staffing levels, training policies and procedures. Steps that have been taken since the incident by the Group are set out in submissions filed with the court. Specific deterrence has only a very limited role to play, if any.
65Mr Martin also gave evidence of the nature of the clientele or services offered at Belfast catering for residents of all ages, NDIS clients and those requiring rehabilitation services. He viewed Belfast as offering social connection and improving the wellbeing of residents with different groups utilising the facility. I was also informed that it is the only indoor facility of its kind in this shire, that it is an important community asset.
66In determining an appropriate sentence, it is necessary for me to consider the financial position of the Group. I was informed that the Group has been a registered charity since September 2019, though has operated Belfast since 2006. Belfast opened as a consequence of a group of volunteers recognising the benefits of opening a pool for the community, including children, who previously had only available to them swimming lessons in the ocean. Funding for the pool was mainly from volunteers, though once plans were underway the local shire has contributed to the cost.
67Details of funds raised by volunteers, cost of upkeep and maintenance, the level of staff and fundraising activities were included in submissions filed on behalf of the Group. It is clear that Belfast provides a valuable community service and that its existence relies on funding from fundraising and grants from local council. I accept given the nature of the organisation and the activities that it conducts, it is very different from a corporation who runs a facility like Belfast for profit, though incidentally provides important social and local benefits to the community. I accept that the Group is motivated principally by achieving the latter benefits for the community and is reliant on volunteers and fundraising activities to a significant extent.
68I was referred to a number of comparative cases of which De Kort and WCA were of most assistance. Although the factual circumstances are different, they provide assistance in determining the applicable sentencing range.
69In Occupational Health and Safety sentencing for this offence, and indeed most Occupational Health and Safety offences, a monetary penalty is all that is realistically available. The penalty is one that must properly meet key sentencing purposes. Those purposes here are public denunciation, and of particular importance, general deterrence, especially to others who must recognise and act to ameliorate risks, to deal with those risks and not breach duties, or in particular, not disregard safety.
70It was submitted on behalf of the Group given the unusual circumstances in this case involving a committee of management and that changes have been made by the Group to ensure that an offence of this nature does not occur again, that I should impose a conviction and release the Group on an undertaking and require the Committee of Management to make a sizeable contribution to a local charity. The prosecution submitted that a fine was the only appropriate disposition.
71I have found this a very difficult sentencing task, particularly given the nature of the organisation of the Group or that it is a registered charity that is effectively run by volunteers through a Committee of Management. However, as part of its undertaking it has taken on an important community activity; the operation of a swimming pool which has associated with it a high level of risk and obvious need for compliance with safety standards. I do not propose to adopt the course suggested by counsel on behalf of the Group, however, the amount of fine that I impose will be significantly reduced given the financial situation of the Group and the means by which it funds its operations.
72It is important that this amount is not to be seen as relevant in comparative cases given the situation or status of the Group.
73It is also important to recognise that the amount of the fine is in no way reflective of the value of Cooper’s life.
74In respect of the breach against s 23 of the Occupational Health and Safety Act, the Group is convicted and fined the sum of $80,000.
75Are there any other matters?
76MR CHISHOLM: Your Honour, is there a 6AAA?
77HER HONOUR: I wouldn’t have thought that was necessary given it was not a situation of gaol, but in any event I can make a 6AAA. If the Group had not pleaded guilty to this matter, I would have imposed a fine of somewhere in the range of $150,000.
78MR CHISHOLM: Thank you, Your Honour.
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