By Dr. Laura Sowden, Partner, and Annabel Cheung, Lawyer

A student drowned on a school camping trip; Tribunal finds no adequate risk assessment was undertaken in breach of Work Health and Safety laws. A pre-discount fine of $700,000 was ordered over the student’s death.

The Background

On 21 March 2021, eight students and two teachers went on a two-day camping trip to Dhilba Guuranda-Innes National Park, organised and conducted by Pinnacle College, South Australia. Ahmad was a student on the trip, him and his schoolmates had chosen a camping and fishing activity. In the permission form sent to the parents, the activity was described as fishing and sightseeing. Rock fishing was described as a possible activity.

The proposed activities on the camping trip were required to be approved by the pastoral care coordinator. Rock fishing was not included in the risk assessment. Further, the pastoral care coordinator had no work health and safety training.

Upon arrival at the National Park, the first thing the students did was gather their fishing tools and headed out to fish on a rocky outcrop.

There, one of the students slipped and fell into the sea. Ahmad and another student either slipped or jumped into the sea to try rescue him. Two of the boys managed to self-rescue however, Ahmad was lost. His body was recovered the next day and the cause of death was determined to be drowning. Ahmad and his classmates were not provided with lifejackets.

Charge

Multi Cultural Youth Education Support Services Ltd (the Defendant), which operates Pinnacle College, was charged with having committed a category 2 offence in breach of ss 19(2) and 32 of the Work Health and Safety Act 2012 (South Australia).

The defendant was charged with failing to ensure that so far as was reasonably practicable, that the health and safety of the students was not put at risk from work carried out as part of the conduct of its undertaking and exposing multiple students to the risk of serious injury or death.

Section 19(2) provides:

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Seriousness of the offending

Deputy President Judge Crawley considered that the offending was very serious, and the risk of injury or death was real and eventuated. The number of victims and potential victims was significant.

It is important that any sentence imposed acts as a deterrent to those bodies charged with the care and protection of children. Children are particularly vulnerable. They have a limited capacity to protect themselves. They and their families entrust their safety to schools and similar bodies.

It was also accepted that the contrition of the defendant was real and deep. The defendant:

• Entered a plea of guilty at the earliest opportunity;
• Took steps to remember Ahmad and commemorate his life at the school;
• Provided grief counselling to all students and families involved in the incident;
• Proffered a public and unreserved apology to Ahmad’s family;
• Undertook a real and substantive review of its policies and procedures; and
• Created new full-time permanent position for a work, health and safety compliance officer.

The Decision

Deputy President Judge Crawley determined that an appropriate fine was $700,000 before reducing the penalty by 40% to $420,000 to reflect the early guilty plea. The defendant was also ordered to pay informants costs of $2,163 and the victims of crime levy of $405.

Implications

This case is a timely reminder that work health and safety laws operate across board-ranging industries and situations. Duty holders under safety legislation owe duties not just to workers but other persons.

Schools and other services who have young people in their care should be hyper-vigilant about safety, undertake safety training, conduct risk assessments and remain mindful of the prospect of being charged with an offence in the event of an incident.

Farrell v Multi Youth Education Support Services [2023] SAET 57