Queensland Building Services Authority v Wilkins

CITATION: Queensland Building Services Authority v Wilkins [2012] QCAT 582

PARTIES:	Queensland Building Services Authority
v
Brien Arthur Wilkins

APPLICATION NUMBER: OCR060-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: 30 May 2012

HEARD AT: Brisbane

DECISION OF: Dr Bridget Cullen, Member

DELIVERED ON: 16 November 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1. Proper grounds exist under s 208 of the Building Act 1975 for the taking of disciplinary action against Mr Wilkins, as he behaved in a way that constituted professional misconduct under the Building Act 1975, by certifying as compliant a pool fence that was not compliant with Australian Standard 1926.1-1993.

2.    Mr Wilkins is reprimanded in relation to this conduct.

3.    Mr Wilkins is to pay a penalty of $4,000.00 (40 penalty units) to the QBSA within 14 days of this order.

CATCHWORDS: OCCUPATIONAL REGULATION – Building – disciplinary proceedings – professional misconduct by pool certifier in circumstances where child drowned as a result of non-compliant fence – reprimand and penalty

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Queensland Building Services Authority represented by Mr Simon Formby, in-house legal counsel
RESPONDENT:	Mr Brien Arthur Wilkins self-represented

REASONS FOR DECISION

The tragic, and preventable, loss of a little girl

1. The events that unfolded in this matter should cause all Queenslanders to think carefully about pool safety.  Tragically, a non-compliant pool fence resulted in the death of an 18-month old little girl, Alliyah, who was able to access the pool when a garage roller door was left open, providing access to the pool area. 

2. Alliyah was found by her mother, who had left her unattended for approximately 40 minutes while she was ill in the toilet.  Alliyah’s grandmother performed CPR, but it was too late.  No doubt her mother has reflected on these 40 minutes and what might have happened if she hadn’t been ill that day on countless occasions since her little girl died, on 24 February 2009. 

3. The Respondent in this matter, Brien Wilkins, is a building certifier who once did work involving pool approvals.  Mr Wilkins had never met Alliyah, her parents or grandparents, and was unaware of her tragic drowning until he was informed some 2 months later by Brisbane City Council Officers investigating the circumstances of Alliyah’s death. 

4. Sadly, some 8 years earlier, Mr Wilkins, through a subcontractor (Andrew Everett of Alliance Building Approvals Pty Ltd) allowed the pool to be certified.  The final inspection checklist contained the handwritten comment, “Owner confirmed that garage door that opens into pool enclosure has been bolted shut, unable to confirm this on site.”  It was through this open garage door that Alliyah gained access to the pool.

5. There is no legal language capable of expressing the despair that everyone involved in this sad tale must have experienced.  The tragedy is compounded by the realisation that had the pool fencing been certified in compliance with the regulations, Alliyah would likely still be with her family, and would by now be a thriving pre-schooler.

6. It is for these reasons that…